How could juries be helped?

[ Under construction ]

I was thinking of some measures that might possibly help juries to reach correct decisions in complex cases.

One aspect that I believe is unfair is the prosecution may never actually ever disclose it’s theory ( or theories ), possibly introducing a new theory after the defence have concluded their closing argument.

And then perhaps to help the jury, there could be a collection of facts that are not in dispute, clearly laid out to help them understand the evidence.

Why do juries sometimes go so badly wrong? I think it certainly is related to emotional arguments.

[ Need to talk about the scientific method, and how you must form a hypothesis before testing it ]

The death penalty and victims of crime

I am opposed to the death penalty for numerous reasons. However one reason that came into particular focus for me following the botched execution in Arizona yesterday was the effect of the death penalty on family members, in this case the family of the victim.

I watched the press conference following the execution, and was disturbed by the levels of anger, and the account by the family of how they had regularly been reminded of the terrible event for the last 25 years.

I thought of the phrase “let go of anger” and on searching immediately found a wikiHow page How to Let Go of Anger. It says:

Anger can eat you up inside and slowly wreck your life. While anger is a natural emotion and a healthy response at times, hanging onto anger can be dangerous. You need to learn to let it go for your own sake. Here’s some advice about how to do just that.

There are then a couple of steps, “Identify the root of your anger” and “let yourself grieve” but the third step seems most significant “Replace resentment with compassion”.

Perhaps compassion may be hard to feel for someone who has committed a terrible crime on your relative, but every crime has a cause, and at least understanding the cause is I think necessary to avoid the very real harmful effects of anger.

I believe the lengthy legal process associated with capital punishment, the invitation to sustain anger over a long period of time and the impossibility of mutual forgiveness  and compassion due to sustained conflict, causes further psychological damage to the family of the victim. They do not deserve this. The death penalty should be abolished.

See also:

Could Juan Martinez fail to pass Go?

The crazy soap opera that is the Jodi Arias trial rumbles on, with revelations that Juan Martinez, the “PitBull” prosecutor has been conducting an affair with Jen Wood, one half of the “Trial Divas”. Comments were left on a blog stating:

Anonymous July 14, 2014 at 9:21 PM
Hey Sandra, this may be old news to you but I will take a shot anyway. Did you know that Teflon Juan and Mrs Trial Diva/Diaries Jen Wood are having an affair? It has been going on for about a year. This upstanding honest man is cheating on his lady with a married woman and Jen is cheating on her husband. On tonights spree she is no longer wearing her wedding ring. No wonder she gets so many scoops huh. This all came out when her ex business partners cell got stolen a couple weeks ago. Lots of screen shots out there of Jen admitting she loves Juan. Caused quite a twitter stir and fight between some at one time twitter friends, Jens camp bullied some who defended the ex business partner. No one denied it and now all seems hush hush. Just thought you might be interested.

Anonymous July 14, 2014 at 9:39 PM
Oh and if I knew how to contact you I would send you the screen shots of Jen’s texts to Sharee. That is why Sharee ended the partnership by the way and she made Jen refund donations because people were paying for her to meet up with Juan. I am just sick of everyone thinking Juan is some sort of God. He by cheating on his lady and with a married woman in my opinion makes him no better than some of the people he prosecutes who have cheated.

Subsequently, the screen shots were posted, and I confirmed with Sharee** that the story was correct, so there is little doubt that Juan has indeed committed adultery.

Historically, adultery has been viewed as a serious crime, in the Old Testament we find

And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death.

Moreover Sharia law to this day indicates this punishment, and according to this article, in some countries it is regularly carried out:

Stoning to death for adultery has been a historical tradition in Islam that goes to the days of Islam’s birth and continues to this day in some Muslim countries, although many Muslim countries have abandoned this barbaric form of punishments due to Western secular-democratic influence. Stoning-to-death for adultery is a legal form of punishment in Iran, Saudi Arabia, Muslim-dominated northern Nigeria, Taleban-rule Afghanistan, Pakistan, and the Islamists-controlled region of Somalia. Indonesia’s Aceh province legalized stoning to death of adulterers in 2009.

In Sharia-ruled Islamic countries like Saudi Arabia and Iran, stoning being a form of legal punishment, offenders are killed by stoning on a regular basis, but those cases get little media attention to the outside world. Stoning adulterers and/or fornicators to death or orders to do so have also been reported in countries like the Sudan, Turkey, Nigeria, and Pakistan, perpetrated extra-judicially upon fatwa by local imams and village courts. In 1997, 23 Islamic clerics in Bangladesh demanded that former president Hussain Muhammad Ershad and his mistress of 14 years, Mrs Mosharraf, be publicly stoned to death for adultery.

However, in the New Testament, Jesus famously advocated against capital punishment for adultery, saying “He that is without sin among you, let him first cast a stone at her.”

But what of the law in Arizona? Perhaps surprisingly, adultery is still a crime. As recently as 2012, the Daily Mail claimed that “‘Cheating’ wife could face jail as husband urges police to enforce Arizona adultery law”. And here we find

13-1408. Adultery; classification; punishment; limitation on prosecution

A. A married person who has sexual intercourse with another than his or her spouse, and an unmarried person who has sexual intercourse with a married person not his or her spouse, commits adultery and is guilty of a class 3 misdemeanor. When the act is committed between parties only one of whom is married, both shall be punished.

B. No prosecution for adultery shall be commenced except upon complaint of the husband or wife

So it turns out that if Jen Wood’s husband were to make a complaint, Juan Martinez could in theory be punished. In practice, it is very unlikely that will happen, but nevertheless the law does recognise that adultery is an offence, damaging to marriage and children.

Melissa Murray, professor of law at the University of California, Berkeley wrote in 2012

“Now we live in an age when sex is not limited to marriage and laws are slowly responding to that,” she said. “But we still love marriage. Nobody is going to say adultery is O.K.”

Apologists for Juan Martinez may seek to place the blame on the woman, but the Go_to_Jailancient law and Arizona law make it clear that  both parties are guilty. I suspect that Juan Martinez will “Pass Go” and will not go straight to jail. Nevertheless it is in my opinion indicative of his general character, which was shown during the circus trial of Jodi, and this raises additional doubts about the safety of Jodi’s conviction. If a man lies and cheats in his private life, what may he do in public? This mirrors the argument Juan made at trial:

And I would only have to point out as far as the May 10th, 2008 conversation in terms of showing that she has no problems lying on the telephone where she says well yeah, I was faking it and you know what she said she was faking, even though you heard her squealing like a cat. No, no, no that’s just me faking it and you know why? Because I need two hands, that’s why she was faking it. Okay, if you can lie on May 10th of 2008 on the telephone to Mr. Alexander, what makes us think that you can’t lie about what you and he talked about on June 3rd, 2008?

However Jodi’s lie was told for the benefit of Travis Alexander, to bring him sexual pleasure. The lies that Juan must have told in his private life are of a different nature.

The issue of Juan Martinez’ conduct would normally not be my concern, however this is a serious business. Jodi has been wrongly convicted of first degree murder, and Juan Martinez and the State of Arizona are again seeking the death penalty. Adultery, stealing another man’s wife, destroying a family, is the act of an unprincipled, dishonest and selfish person. His conduct deserves public exposure and condemnation.

See also:

** Here is how my conversation with Sharee ( Trial Queen )  went:

16/07/2014 15:43 George Barwood
Is all this true: … ?

That is you split from Jen Wood because she had an affair with Juan.

“That is why Sharee ended the partnership by the way and she made Jen refund donations because people were paying for her to meet up with Juan.”

is what someone said anonymously.

If true, I think you acted rather honourably there, well done. I just wanted to confirm it.

Trial Queen 16/07/2014 15:59
I did split with Jen for this reason. I also did offer refunds for people after I found out. Thank you for your support, I appreciate it. I tried to work it out before we split, but my reputation, image and everything else was on the line. It was unfortunate but necessary and I don’t regret it.

Oscar Pistorius

To err is human, to forgive divine.” — Alexander Pope

The death of Reeva Steenkamp on the early morning of Thursday, 14 February 2013, was undoubtedly a tragic event. Reeva was a beautiful, intelligent woman, aged 29, who had worked as a model and a paralegal, and was hoping to be a qualified legal advocate by the age of 30. The day before she died, she was preparing a speech on domestic violence, planning to use her growing fame to make a difference. She had cancelled a coffee date with her best friend, Gina Myers, to keep working on the speech. She had been dating Oscar Pistorius for just four months, and had chosen ValentineCardCroppedValentine’s day to give him a card in which she declared her love for the first time. Inside the card she wrote

 “I think today is a good day to tell you that… I love you”

However Reeva never gave the speech, instead, shortly after 3am on the morning of 14th February, noises were heard by neighbours, and at 3:18am Oscar Pistorius called his friend and manager of the estate Johan Stander, pleading

“Please, please come to my house. I shot Reeva, I thought she was an intruder. Please, please come quick.”

He then made two further telephone calls, one to emergency services and then a very brief call lasting just 9 seconds to Estate security. He then  picked Reeva up and carried her down the stairs , where he was met coming down the stairs with Steenkamp in his arms by Johan Stander and Stander’s daughter. Stander testified

“He was broken, he was screaming, he was crying, he was praying, I saw the truth that morning”

Dr Johan Stipp testified that when he examined Reeva at around 3:25am, there was no pulse or signs of life, her pupils were fixed dilated and cornea milky, and had already started to dry out.

However, Pistorius was arrested, and according to Chief investigating officer Hilton Botha’s testimony at a bail hearing on 29th February, a witness had heard gunshots coming from Pistorius’ home, then a female screaming followed by more gunshots, suggesting that Reeva had been murdered.

Trial commenced on 3 March 2014. Witness  and neighbour Estelle Van Der Merwe testified in Afrikaans that she woke up at 1:56am to a woman’s raised voice for about an hour, followed by four loud sounds. She could not hear what was said, or even the language. She had put a pillow over her head and looked out the window on the opposite side of house, away  from Pistorius’s home facing open land at some point to see where voice was coming from but couldn’t ascertain the source. No other witnesses heard a raised voice.

Many witnesses heard screams coming from the house around 3:15am, and the defence case was that these screams were in fact Pistorius screaming for help and not Reeva. In summary Michelle Burger, Charl Peter Johnson, Dr Johan Stipp and Anette Stip all heard screams, which they interpreted as a woman or were not sure.

However, immediate neighbours Michael Nhlengethwa and his wife Eontle both testified they heard a man crying loudly in a high-pitched voice and calling three times for help. Another immediate neighbour  Rika Motshuane, insisted that she heard a man crying, describing it as a “cry of pain”.

Pistorius testified commencing 7th April that he had mistaken Reeva for an intruder, after hearing the bathroom window open, believing her to be in bed. After advancing on the bathroom, hearing a noise from inside the toilet, he had opened fire without thinking, firing four shots in a state of terror. After firing the shots, he waited for an indeterminate length of time, and then made his way back to the bedroom, where he could not locate Reeva. After an unsuccessful attempt to break down the toilet door, he put on his artificial legs, and broke down the toilet door with a cricket bat he had used to wedge the bedroom door shut ( the bedroom door having a lock that was not substantial ).

On 12 May, forensic psychiatrist Dr. Merryl Vorster testified that Pistorius had a generalised anxiety disorder (GAD). After a prosecution request, Pistorius’ mental condition was evaluated. The evaluation found that Pistorius was not mentally incapacitated, and did not find GAD, however the report largely confirmed the defence case, finding that

 “Mr Pistorius has been severely traumatised by the events that took place on 14 February 2013, He currently suffers from a post-traumatic stress disorder, and a major depressive disorder … The degree of anxiety and depression that is present is significant. He is also mourning the loss of Ms Steenkamp. Mr Pistorius is being treated and should continue to receive clinical care by a psychiatrist and a clinical psychologist for his current condition. Should he not receive proper clinical care, his condition is likely to worsen and increase the risk for suicide.”

 The report found some jealousy but no evidence of abuse by Pistorius:

“There is evidence to indicate that Mr Pistorius was genuine with his feelings towards Miss Steenkamp and that they had a normal loving relationship. He did become insecure and jealous at times but this was normal for the specific situation. He would express his displeasure and irritation but would try and sort it out later by talking with Miss Steenkamp. Although the relationship was still young, there were no signs of abusive coercion like those often found in these kinds of relationships.”

The defence case was reinforced by the many factors that could have disposed Pistorius to fight rather than flee when confronted by a perceived intruder.

  • Experiences from childhood, his mother kept a gun under her pillow
  • High rates of crime generally in South Africa
  • Pistorius’ inability to flee due to not having his prosthetic legs on
  • His strong desire to protect Reeva
  • The bedroom door being locked
  • Sprint athletes are trained to react to the noise of a starting gun
  • Incidents at the Estate where Pistorius lived
  • Violent incidents which Pistorius had experienced prior to shooting Reeva

The prosecution case was apparently that Pistorius had shot Reeva shortly before making the call to Johan Stipp, and the sounds which the defence attributed to the cricket bat breaking down the door were actually the gun shots.

There appear to be numerous problems with this prosecution case:

  • While the prosecution has sought to portray Pistorius as hot-headed, there is no evidence of abuse, as confirmed by the psychiatric reports.
  • There is no evidence of an argument, other than from Van Der Merwe, who apparently heard an unrelated event.
  • The time from when witnesses heard a second series of loud bangs to the time at which Pistorius called Johan Stipp is not sufficient for Pistorius to have performed all the necessary actions. Immediately after the last set of loud bangs, Pistorius was heard calling loudly for help, and he then made the series of telephone calls.
  • Especially significant is an unopened Valentine’s card Reeva gave to Oscar, telling him for the first time that she loved him.This indicates the relationship was at an early stage, far too early for a major argument to be plausible.There is no evidence of a progression of violence, or that Oscar had ever been verbally or physically abusive to a woman.His character generally is exemplary, performing charitable work for the disabled, and also helping victims of crime on two occasions.
  • Forensic evidence given by prosecution expert witness Johannes Vermeulen, a police forensic analyst, shows that the door was struck by the cricket bat after the gun shots were fired:

Roux: What’s your view, was the door hit after the shots?
Vermeulen: My lady, in my view the door was hit after the shots. There is a crack here. There had to be a hole in the door, otherwise the crack would have gone straight through.
Roux: You explained the crack that ran down into a hole and then down to a different place.
Vermeulen: Yes, My lady. I have quickly drawn a picture to show you. There is a crack coming into the bullet hole. The crack goes out on the left hand side of the bullet hole. That is why I say the bullet hole was there before the crack.

  • It is agreed that Pistorius was not wearing his artificial legs when the shots were fired. It seems unlikely that he could have broken the door while on his stumps, as he is barely able to balance, let alone wield a cricket bat with force. It seems very implausible that he would remove his artificial legs solely to fire the shots, and then put them on again before carrying Reeva down the stairs.

In my opinion, the prosecution has failed to prove  beyond a reasonable doubt that Pistorius intended to kill Reeva, and there is substantial evidence that indicates that this was in all likelihood a tragic accident.

On Thusday, 3rd July, the court adjourned until Monday 7th July, to allow the prosecution to prepare possible further cross-examination of defence witness Wayne Derman, professor of sport and exercise medicine at the University of Cape Town, reportedly the last witness for the defence.

Support for Oscar Pistorius has grown steadily, with membership of a grass-roots Facebook group discussing the trial growing from a handful to over 4,600 members as  the trial has progressed. A poll of members showed that more than 75% are of the opinion that Pistorius did not know that Reeva was in the toilet when he opened fire.

Update: On 8 July, the defence closed its case. Defence lawyer Barry Roux protested “We were unable to call a number of witnesses because they refused, and didn’t want their voices heard all over the world.” Closing arguments were scheduled for 7 and 8 August. Via

See also How did Oscar Pistorius’ defence fare? by Andrew Harding, BBC news, 8 July 2014.