criminal law principles
In which I make some uninvited retorts to specious arguments against abolition
Apr 10th
With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.
I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.
Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?
A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.
Q: “Bluster?” What ever can you mean?
A: It was never a serious proposition, just a useful piece of propaganda.
He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.
Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.
A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!
This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.
It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.
So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.
Q: Another argument was that the penalty once applied was irreversible.
A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.
I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.
Q: But the appeals!
A: A means of postponing punishment, a judicial means of jury nullification.
…
[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.
You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.
First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.
This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.
But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.
Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.
These are the appellate review options available to any defendant:
1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).
2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
3. A Petition for Writ of Habeas Corpus in State Court.
4. An Appeal to the Connecticut Supreme Court from that decision.
5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
6. A Petition for Writ of Habeas Corpus in Federal District Court.
7. A Discretionary Appeal to the Second Circuit Court of Appeals.
8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]
To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.
To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.
In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.
[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]
To plead or not to plead: a critical question
Mar 21st
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?
So muses Hamlet in Act 3, Scene 1 of Shakespeare’s play of the same name. So goes the quandary faced by criminal defendants in today’s criminal justice system: to plead or not to plead? Is it more advisable to suffer the ignominy of a conviction and lesser jail time up front than to press the sword of trial and hope that it doesn’t turn on you, often to more deleterious effect?
Hamlet had no one to guide him honestly; the modern criminal defendant, however, does: his lawyer. And it is upon this lawyer that he relies for a frank and learned assessment of the pros and cons of the various options available to him. To argue that the decision to plead guilty or to reject an offer is not a “critical stage” of the criminal process is to disingenuously ignore the realities of this modern day system.
And yet this is precisely what agents of the various States have been arguing for many years. This is a nonsensical fight that I personally have fought for at least 5 years now, without any direct guidance from the United States Supreme Court. Until yesterday.
In two sure to be seminal cases, Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages and yes, Dorothy, the plea bargain is a “critical stage”.
The argument for this holding is best explained by stating the position of those against it. The position against is this: so long as a defendant receives a fair trial, it is irrelevant whether – and to what extent – his lawyer erred in the time leading up to that trial. Reductio ad absurdum, to these folks, if a lawyer never speaks to his client prior to the trial and conveys no offer, it doesn’t matter, because the right to effective assistance of counsel only has force in the context of a criminal trial.
To a less absurd degree, take the case of Lafler, whose lawyer told him that he should reject a very favorable pre-trial offer and instead make the State prove its case because there was no way he could legally be convicted of attempted murder, since the victim was shot in the leg.
You don’t need 3 years of law school and a passed bar exam to tell you that’s just wrong. Stupid, wrong and dangerous. But the States would have you believe that it is of no moment that such patently faulty advice was given, because Lafler received a fair trial.
Justice Kennedy, writing for both majorities, explains it well:
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
While the significant role of plea bargaining cannot be diminished (also why ideas like taking every case to trial are stupid and unethical), I would argue that the right to effective assistance pre-trial is not a product of only that large impact of the plea process. It is also a matter of simple logic and ethical responsibility. As I’ve long argued, we are our clients’ shepherds through this complicated quagmire that we call the criminal justice system. The layman, untrained in the nuances of this system, look to us to proffer advice and most often follow our advice. How would you feel if you were given bad advice by the person whose only responsibility was to give you good advice?
Simply put, the issue boils down to this: if you have a right to have a lawyer give you advice, then you have a right to have that lawyer give you competent advice.
This is an outcome that everyone involved – judges, prosecutors and defense attorneys – should be cheering, because it ensures that the system is fair. That is not to say that all advice given by counsel that a defendant doesn’t like is per se ineffective, as some folks1 would have you believe. Rather that a court should evaluate that advice to determine whether it was sound. I suspect that in the vast majority of cases, the advice will be deemed so. But there will also be cases where, but for the misadvice of counsel, the defendant would have not been worse off.
The problem with these opinions lies – as it often does – with the remedy. Here is where I part ways with Justice Kennedy. He writes, in the context of a sentence after a jury trial and a rejected plea agreement:
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
This proposed model of determining remedy is fundamentally unsound. The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible. In my mind, the only appropriate remedy2 is the first one: if the defendant can establish that the plea was rejected as a result of ineffective assistance and the plea would have been accepted by the judge, the only way to make the defendant whole is to sentence him to the terms of that plea. Anything else would be a band-aid on a gaping wound.
Finally, there will always be naysayers even among the defense bar. To them, I repeat words I wrote just under two years ago:
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.
IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us. At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.
This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
———————
1. The analogy given by the good folks at C&C is, simply put, stupid and inapposite. This is not a situation where “you offer to buy my car for $10,000. After consulting with my expert, I reject the offer. Turns out my expert gave me bad advice. The next week, I want to go through with the deal. In the meantime, though, I have wrecked the car. Would it be fair to make you pay me $10,000 for the now-wrecked car?” The expert has no duty to give me advice and my “wrecking the car” is not analogous to going to trial with that expert as my advocate.
2. The same good folks at C&C suggest that the appropriate remedy should be that “the defense lawyer should be personally liable for the cost of the trial. If the defense was the public defender’s office, the cost of prosecution should be transferred from the public defender’s budget to the district attorney’s budget.” If it wasn’t clear prior to today that the good folks at C&C were only concerned with obtaining convictions and watching people murdered by the State, it should be now. Such a rigid, simplistic view of the by-its-nature murky and unclear business of assigning guilt does a disservice to everyone.
Taxing the system
Mar 11th
“We should just put everything on the trial list. That’ll learn ‘em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).
The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.
It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.
An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.
When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:
Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.
Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.
Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.
[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.
Do it when you’re arrested, not when you’re defending someone else’s liberty.
There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.
My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.
[H/T: Bobby G.]
Pardon me
Mar 8th
Just before he left office in January 2012, Mississippi Governor Haley Barbour pardoned a whopping 198 people at once. Despite the fact that only 10 of them were still incarcerated, the pardons set off a firestorm and gave birth to a lawsuit seeking to invalidate the pardons, not because they weren’t deserved or that the Governor didn’t have the authority to issue them, but rather because he allegedly hadn’t followed the notice requirements.
Today, the Mississippi Supreme Court issued a 6-3 ruling [PDF] holding that the pardons were valid because to rule otherwise would violate the separation of powers. All the opinions together total 77 pages, but they are worth reading from start to finish because they provide an in-depth analysis of the separation of powers and our system of checks and balances. The opinions are an enlightening walk into history underscoring the pivotal importance of the independence of the three branches of government. The granddaddy of all separation cases, Marbury v. Madison, is front and center.
Of course, while this furor isn’t about the fact that almost two hundred criminals were pardoned, it really is. People are angry for nothing other than the simple reason that some “lawless convicted felons” (a quote from the operative dissent) got some supposed windfall.
But what really, does this pardon do? Does it negate the crime? Does it negate the years of punishment? Of course not. All it does is gives some people a chance at rebuilding lives unburdened by the stigma and trappings of a criminal conviction. You can argue that some of these 198 don’t deserve it. You can argue that some people deserve to have less than meaningful opportunities as punishment for what they’ve done. You can argue that the Constitution shouldn’t give a Governor unchecked power to do as he pleases in this regard. Heck, you can amend the Constitution to do just that.
As one concurrence points out, that’s not the issue. The issue, simply, is whether judiciary can even begin to examine the exercise of authority that exclusively belongs to the executive? As the majority eloquently puts it:
the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of government has constitutional authority to void a facially -valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124′s publication requirement.
In other words, the procedure for exercising executive power is within the province of the executive alone. I’m not sure which side I come out on in this issue. It’s certainly not an easy one, nor one that was made lightly, I suspect. On the one hand, the implications of holding that courts can and should review executive decisions are staggering. Can you imagine courts reviewing and inquiring into every vote taken in every legislature throughout the country? The focus of the courts’ review has to be the content of the laws passed by the legislature and the actions taken by the executive, not the process by which those laws came into creation.
But, on the other, is the danger that facially void laws come into effect: what of a bill that is signed by the Governor that has not been passed by both chambers of the legislature? That, after all, is also merely the process by which laws are made.
There is a distinction, I suppose, but one that is ever so slight. And that’s what makes this opinion fascinating. It a decision of pure Constitutional interpretation that allows us all to act as if it were still 1803.
Seeing as how I mentioned Marbury, I have to link to this re-enactment again:
Alabama, United States
Mar 4th
Back in December, 2010, Alabama’s preposterous prosecution of Gabe Watson caused me to write this post questioning whether The Yellowhammer State (seriously?) had forgotten that it was located within the territorial boundaries of these United States and not in Oceania, which it was at war with.
Concisely, Gabe Watson’s wife died during a diving incident in 2003. 5 years later, because that’s how laid back they are in Oz, he was indicted in Queensland for murder and eventually pled guilty to manslaughter receiving an 18 month sentence.
But that didn’t sate Alabama Attorney General Troy King, who is reported to have remarked: “18 months? In Alabama you get 18 months just for being black!”1 So he opened his favorite refrigerator and pulled out his favorite lunchtime snack: that venerable ham sandwich and had Watson indicted in Alabama for murder. For a death that occurred in Queensland, Australia. The theory, naturally, was that he planned his crime in Alabama and thus that – oh, I don’t know, just go with it, okay?
And so on went the prosecution of Gabe Watson, all the way to trial, causing most people with any knowledge of how things are done in Alabama that a capital conviction was forthcoming.
But those people don’t know Judge Tommy Nail, apparently (Can I point out how awesome it is that he goes by Tommy, not Thomas or Tom? Does he wear leather to work and ride a hog?). Because Judge Nail reminded the Yellowhammers that we still operate under laws and those laws come from the Constitution:
“The evidence is sorely lacking that it was an intentional act,” Nail said in response to a defense motion for acquittal after the prosecution completed its case.
“The only way to convict him of intentional murder is to speculate,” Nail said. “Nobody knows exactly what happened in the water. I’m sure we’ll never know.”
Nail also said the prosecution’s evidence about financial gain was a stretch, and he heard no evidence proving a profit motive.
And you know why there wasn’t any evidence of financial gain or profit motive? Because Watson couldn’t have profited. The beneficiary of his ex-wife’s life insurance policy was her father, who pushed King to prosecute Watson.
This silly, wasteful prosecution was rightly dismissed by the judge, but not after much money was spent and stress caused and the loss of liberty threatened. All for what? A political ploy? Publicity? I refuse to believe that King honestly thought he was pursuing justice in this case by prosecuting Watson on the most threadbare of theories. Someone who takes elected office must have a greater sense of responsibility to the citizens of the state and to justice. But there are or will be no consequences stemming from this for King. He’s free to terrorize someone else tomorrow, perhaps someone without the media attention surrounding Gabe Watson, thus escaping close scrutiny. Maybe there are other judges who aren’t Judge Nail, willing to give the prosecution the benefit of the doubt and deposit barely-weak cases in the laps of mercurial jurors.
Judge are the second gatekeepers of justice; prosecutors are the first (jurors are the last). We should demand more of them; we should expect more. If we don’t, we’re all a few minutes from midnight, about to turn into ham sandwiches.
1He said nothing of the sort that I know of. I mean, anything’s possible, I suppose, but I just made up that quote because I wanted to perpetuate stereotypes about Alabama. It’s parody. Don’t sue me.
Genealogy
Aug 18th
give me your tired, your poor - no wait, that's the other one
A sense of awe and a nobility of purpose is an often-found characteristic among those of us who choose to dedicate our lives to the criminal justice system. Though most may not choose to repeatedly quote Ammianus Marcellinus or repeatedly invoke the image of Sisyphus, we are all aware of our place in the continual progression of a free society and most importantly, the simple atoms from whence we evolved into the rich, complex system which governs our lives today.
Whatever the role of Roman Law may have been creating the broad outlines of the present system, the most significant impact was that of the British legal system from the 17th century onwards, most famously represented by the court at Old Bailey. (Astute readers will note that this painting of a scene at the Old Bailey – which seems to be a color reproduction of a Thomas Hosmer Shepherd watercolour and H. Melville engraving – used to lend an unwarranted gravitas to this blog.)
To those who know – and those who want to know – I recommend the website ‘Old Bailey Online‘, the subject of this new NYT piece on the vast amount of historical information about Old Bailey trials now available and searchable. The advances in computer technology have made it possible for researches to quickly and deeply analyze the vast volumes of information stored in ‘the Proceedings’, drawing some interesting conclusions. From the NYT piece:
Beginning in 1825 they noticed an unusual jump in the number of guilty pleas and the number of very short trials. Before then most of the accused proclaimed their innocence and received full trials. By 1850, however, one-third of all cases involved guilty pleas. Trials, with their uncertain outcomes, were gradually crowded out by a system in which defendants pleaded guilty outside of the courtroom, they said.
Conventional histories cite the mid-1700s as the turning point in the development of the modern adversarial system of justice in England and Colonial America, with defense lawyers and prosecutors facing off in court, Mr. Hitchcock and Mr. Turkel said. Their analysis tells a different story, however.
“Mapping all trials suggests that the real moment of evolution was in the first half of the 19th century,” with the advent of plea bargains that resulted in many more convictions, Mr. Hitchcock said. “The defendant’s experience of the criminal justice system changed radically. You were much more likely to be found guilty.” Last month the scholars submitted an article to the British journal Past and Present on their findings.
Profound shifts were behind the turn toward negotiated agreements. The class of professional lawyers, police officers and judges was growing quickly at the same time that prison began to be used as an alternative to exile or capital punishment, historians have noted. (The first modern prison in Britain can be dated to 1792.) As Mr. Hitchcock said, “It’s hard to have plea bargaining when all they are going to do is hang you.”
This online repository is a delightful source of endless hours of entertainment. For example, see this account of the poor fellow who received a “fentence of Death” for stealing a Mare and a “Guelding”, or this unfortunate soul who was “Drawn, Hang’d and Quartered” for, well, you have to read it yourself:
Conviction by cuteness
Aug 10th
Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).
It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
…
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.
There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:
His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:
A Cronic problem
Aug 1st
too soon?
Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.
Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.
I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.
But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?
In Cronic, SCOTUS said:
Aaron Swartz is the new Lori Drew: The TOS misadventures
Jul 19th
If the Federal government were on Twitter or Facebook (or even that shiny new toy Google+), they’d be the confused old grandfather who’s elated that he’s won the Australian lottery even though his clearly smarter – and younger – wife quizzically asks him if he’s every been to Australia.
The Feds continued their misadventures in Terms of Service land with an indictment handed down today against Aaron Swartz, disputed co-founder of Reddit, the less well known bastard child of Digg.
His crime – described by his acts, not the silly US Code that they’re charging him with (PDF) – is essentially downloading staggering amounts of documents from JSTOR, the online repository of the ivory tower’s pontifications and musings on the life of the bourgeoisie. Seriously. Have you ever tried download anything from JSTOR? Apart from being so damn counter-intuitive, that shit is expensive. So expensive that some universities are charged $50,000 a year for access to the hallowed writings scanned and uploaded to JSTOR.
Swartz, someone whom the Feds have had their eye on for a while, basically used spoofed MAC addresses, guest accounts and the like to get behind their paywall and just download all their files. What was he going to do with it? Who the hell knows. But he did it because he hates paywalls and believes in freedom of information and free dissemination of that information. Or something. Watch out, NYT, you’re next.
For your eyes only: prosecutors really can’t look at privileged documents
Jul 17th
From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.
Just how egregious was this violation of the attorney-client privilege? Judge for yourself:
During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege.
This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:
The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.
What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :
An ode to the Kitchens sink: a tragicomedy
Jul 17th
Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought
it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved
And so the court issued
its seminal holding
in the case of
State v. Monica Golding
The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed
In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl
And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent
And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective
Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”
If you do not object
or even stand silently by
as erroneous instructions
the jury must apply
If you do not state
with exacting precision
the specific problems
with the court’s instruction
The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might
The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed
You must be prescient
You must be attentive
because the Court has become
anal retentive
And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?
Ask for copies
and then ask for time
and if you forget
just remember this rhyme
One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.
And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:
What do we want from our system?
Jul 10th
see end of post for info on this picture
I feel compelled to start, once again, with one of my favorite quotes:
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.
The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.
Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?
Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?
we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.
Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:
“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead. He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”
Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.
“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.
“No truer statement has ever been spoken,” Fuger wrote.
Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.
It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”
“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.
The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:
In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…
Emphasis added by me to point out the subtle use of words to support their conclusion.
So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:
First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.
Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.
Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.
It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:
A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.
Now, she’s in hiding.
Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.
Why? He says she fears half of her co-workers want her head on a platter.
The other may understand what she did, but she didn’t want to face them.
She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.
She retired over the phone.
The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.
One day they’ll come for you and there’ll be no one left to speak up for you.
What do we want from our system? A rubber stamp, apparently.
[For an interesting local connection to the image above, see here.]
Florida’s death penalty is unconstitutional
Jun 22nd
In a fascinating decision from the United States District Court for the Southern District of Florida, Judge Jose Martinez has ruled that Florida’s capital sentencing statute violates Ring v. Arizona. In Paul Evans v. McNeil [pdf] (scroll to page 78 of the document), the district judge considers – and rejects – 16 claims for relief before finally getting to the Ring claim. For those who don’t know, in Ring v. Arizona, SCOTUS held:
This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.
In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.
Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.
Florida’s capital sentencing statute (see also) permits exactly that:
(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.
(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.
But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.
All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!
This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.
What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.
In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 - heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:
The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.
Perhaps the good judge missed this from footnote 33:
Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.
Don’t even think about asking me what this means for the Casey Anthony trial.
It only takes one
Mar 31st
We have a saying, those of us in this field, that “it only takes one”. It’s said with a slight wink and an imperceptible smile, the legal defense equivalent of “anything’s possible”. Said in reference to cases that present near insurmountable challenges to the defense, it implies that all you need is one juror and you have a hung jury. And if that occurs, anything can happen: the state may not re-prosecute, they may offer a more palatable plea bargain, or at the very least, you’ll have a free preview of their evidence. “It only takes one” is the outcome you’ll gladly accept when all hope of an outright acquittal is lost.
Paul Kennedy, in this post today, writes about a recent Texas trial and the jury’s failure to unanimously agree on a verdict. He references the “reasonable doubt” posts written by both Scott and yours truly last week to ask:
What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn’t prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn’t prove beyond all reasonable doubt?
Rephrased, in the words of Judge Gee, writing for the 5th Circuit in US v. Becton, the issue becomes this:
Reasonable gibberish
Mar 22nd
(alternate tagline: because juries never convict anyone anyway)
“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.
Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.
Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:
The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4
Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6
recent comments