For the past couple months, I’ve had a feeling of guilt over presuming someone else’s guilt.
This started 15 years ago back when I was the new morning guy at KHOP in Modesto, California. You probably don’t know much about Modesto. If the small city’s name does ring a bell, there’s a 99% chance it’s because you remember the story of the horrendous murder of Laci Peterson. The only thing you could possibly otherwise know it for is it was the setting for the movie American Graffiti. But you’re probably not old enough to remember that movie. I’m not. And I’m old.
My time in Modesto was too long. The people were nice. Really nice. Generous, kind, down to earth hard working people. But the city itself was brutally dull. I have two prominent memories of life in Modesto. A nearly constant breathtaking sour odor of cow manure on the…
I think many people think the US justice system has safeguards and is designed to protect the rights of innocent people.
Superficially that’s true, but it’s administered by politicians who can bend the rules whenever it suits them, and make judgements that defy common sense but which are not “unconstitutional” (so not subject to Federal challenge).
So in practice, wrongful convictions are commonplace, in serious cases perhaps 4% of accused people are innocent. Solving serious crimes is a tricky business, and there are going to be lots of mistakes.
Prosecutors with a weak case like the death penalty, because
(a) It allows them to appeal to juror emotions more strongly. There is a stronger presumption of guilt.
(b) It slows the entire process down, so by the time the truth is revealed (if it is ever revealed), the prosecutor has probably moved on and is now a judge or in private practice, or retired or dead.
A criminal justice system is a necessity, but society should recognise that convictions are not and cannot ever be certain, however much a jury is exhorted to respect the principle of reasonable doubt. People can be easily fooled, it is human nature.
So it is inevitable that there will be wrongful convictions. What is wrong is to suggest that wrongful convictions do not and will not happen, and to have extreme sentences that are unnecessary and serve no useful purpose for society.
(1) Jodi Arias plans a murder in which she takes selfies of herself committing the crime.
(2) Scott Peterson plans a murder, in which he disposes of the body in broad daylight, and then tells the police where he disposed of the body.
(3) David Temple plans to murder his pregnant wife with a shotgun at 4:10 p.m. in an upstairs room, hoping nobody will hear the shot or notice his vehicle or him leaving the scene.
(4) Justin Ross Harris murders his son, and while doing so, is sexting underage women, an offense for which he is sentenced to 10 years in prison.
(5) Jason Sadowski duct-tapes two women to poles, tortures them, then unties one of them and let’s her call the police on a mobile phone ( also leaves the building, so they are free to leave, no locked doors ).
(6) Darlie Routier murders her sons, with her husband in the house, and rushes outside to plant a sock in an alley-way hoping he won’t come down in the meantime. She then sets about a complex staging of the scene involving nearly killing herself.
(7) Angelika Graswald murders her fiance by removing a tiny plug on the top of his Kayak, even though the amount of water that can come in due to bad weather there is minimal compared to the amount coming through the large opening where he sits.
(8) Debra Milke murders her son because “she didn’t want him to grow up to be like” his father.
This is a question I wish jurors would ask themselves more often.
What I think is often missed, is that if you pick a random person out of a telephone directory, the odds are very high than they are not someone capable of heinous murder.
In any homicide investigation, there are two questions to be considered:
(1) Was it some kind of accident or self-defense, or is it murder.
(2) If it’s murder, who did it.
The first question may sometimes seem trivial, but it’s not. Any number of wrongful convictions arise from situations where an accident or self-defense killing is mistaken for murder.
Unfortunately people are far too easily persuaded there is a crime on uncertain evidence, and forget how unlikely it is that an accused person is guilty, especially when there is no apparent motive for an alleged crime, and the accused has no notable record of physical violence towards others.
Uncertain evidence comes in two varieties:
(1) The evidence itself is uncertain : the source is not reliable, or a mistake may plausibly have occurred. An example is making inferences from an absence of evidence, or eyewitness identifications, which are notoriously unreliable. Or a statement made by a person with a motive to lie.
(2) The inference is uncertain : there is an innocent explanation that cannot be ruled out.
I wish jurors would not vote guilty on uncertain evidence, especially when the innocent explanation is far more probable.
The State alleges that Harris was criminally negligent, that criminal negligence caused the child to suffer ( a felony ) and in the course of that felony, the child died. Felony murder.
Standard examples of criminal negligence involve activities that are inherently dangerous, for example texting while driving a car.
The State may argue that trying to look after a child while sexting women ( a distraction ) is criminally negligent, but I think that is problematic. It’s not at all clear that Harris or any reasonable person would think it’s wrong to be texting while looking after a child. It’s a common thing to do, and there is no law against it ( the fact that some of the women were under-age doesn’t I think make any difference here, as this doesn’t make the act any more dangerous to Cooper ).
The logical consequence would be that perfectly normal activities such as listening to the radio, making a telephone call, thinking about what you are going to have for dinner, all normal activities that could distract you, while caring for a child, could be criminal negligence, punishable with a lengthy prison sentence.
I think that would be absurd. We may want to punish Harris for his failure to look after his child, but if he had not criminal intention, if he was not in the least bit aware that his actions that day were a danger to anyone, least of all his son, a guilty mind, I do not believe he should be found criminally negligent.
Two wrongs don’t make a right – you cannot compensate for a terrible loss by causing equal suffering to the person held responsible, even though revenge is a natural human emotion.
We don’t punish children severely when they make mistakes, even if the mistakes are terrible ( well not any more, look up the case of George Stinney ).
Now I am not saying that adults are children, they should be punished more than children for equivalent acts, plus there is a need to protect the public from offenders who may re-offend. But adults who commit crimes tend to be those who had bad childhoods, who suffer from mental illness, who have some kind of disadvantage.
A day is a long time in prison. A week is a long time. A month even longer, A year longer still. Ten years a very long time in prison. Twenty years an extraordinarily long time. These are harsh punishments, and provided authorities deem that someone has been rehabilitated, and is safe to release, this length of punishment should be enough even for the worst crimes.
This is how Norway approaches imprisonment. I would say it is humane and in the best interest of society.
It also gives some relief to the many people who are wrongly convicted. In my opinion the USA has fallen into a system of “ultimate vindictiveness” where large numbers of people are subject to unduly harsh punishments, often being sentenced to die in prison, being given no hope or reason to rehabilitate themselves. That is cruel.
I believe the police have overstated the evidence in this case, for example saying Harris searched for “hot car death” when that wasn’t the case.
Kilgore also said that there was no evidence that Ross was searching on the internet for things like how long does it take for a child to die a hot car. Kilgore contends that police lied in their sworn statements when they accused Harris of these questionable searches.
That makes me suspect they don’t have anything solid. And it’s a strange and implausible way to murder your son, plus by all accounts he loved his son dearly.
I watched opening statements, and found the defense case to be convincing provided the evidence supports what was said, the State’s case unconvincing ( see discussion here ).
One thing to take into account is that these days some people will view a vast amount of material online on a huge number of topics over a long period of time. To be frank I think that if you did a similar analysis on any number of people’s devices, you would come up with a few “suspicious” things relating to almost any accusation. Unless the prosecution can show not only that various random topics (such as “child free”, a hot car info video) were accessed over a long period of time, but there was some pattern of planning, or incriminating things Harris actually said (typed, rather than reading ), there is no probative value.
It’s cherry picking evidence at it’s finest, and a new development over the last few years as disk storage capacity has increased massively. I think it should be ruled as irrelevant and inadmissible.
Still a long way to go in the trial, my opinion could change, but I am unconvinced so far by the State’s case, and there is at least reasonable doubt so far.
Scott Peterson’s Habeas appeal is a lengthy document, running to 285 pages, so I thought it might be useful to write a short summary. Very briefly, the case is as follows:
On December 24, 2002, Scott reported that his wife Laci was missing from their Modesto, California home. Laci was eight months pregnant with a due date of February 10, 2003. The couple had planned to name her baby boy Conner. The story attracted nationwide media interest. Scott told police that he had made a trip to Berkeley Marina that day, and police made an intensive but unsuccessful search of the Bay near that location, suspecting that he may have murdered Laci and disposed of the body there.
On April 13, 2003, Conner’s body was found close to shore just North of Berkeley Marina, and the next day Laci’s body was found in the same area, also close to the shore. The exact date and cause of Laci’s death could not be determined.
Scott was arrested, tried and found guilty of the murder of his wife and unborn son, and sentenced to death on March 16, 2005.
The fundamental question is whether Scott disposed of Laci’s body, or whether some unknown person or persons planted the bodies in order to cause his arrest and trial.
The State alleged that the murder was premeditated, and that Scott bought a boat to dispose of Laci’s body. Police found a concrete anchor Scott had made, and suggested that he had made four similar anchors to weigh Laci’s body down. A single hair, said to have been Laci’s, was found on a pair of pliers from Peterson’s boat. The state suggested that Laci was murdered before Scott left the house on December 24,
In more detail, the state’s theory was that
Scott killed Laci in their home between the night of December 23 and the morning of December 24, possibly by suffocation.
Scott put the leash on McKenzi and let him loose in the neighborhood so that it would appear that Laci had been abducted while she walked the dog. Scott moved the body to his Modesto warehouse by putting it in a toolbox in the back of his truck.
At the warehouse, Scott then attached homemade cement anchors to the body and placed it in the back of his 14-foot Sears-Roebuck boat which he then towed to the Berkeley marina.
When Scott got to the marina he launched the boat and, once on the bay, he pushed the body (with the anchors) overboard.
Scott committed the crime either for financial reasons or to obtain freedom from Laci and Conner.
It is not disputed that Scott took his boat out on the bay, but the state did not prove Laci’s body was in it. Scott accurately described an island he visited near the marina.
The state suggested that a dog detected Laci’s scent at the marina.
The Habeas Appeal
The appeal makes nineteen claims in all, I will concentrate on those that seem to me to be the strongest points.
One of the jurors lied during voir dire when asked if she had ever been the victim of a crime. In fact, “when the juror was four and one-half months pregnant in November of 2000, she and her unborn baby were threatened, assaulted and stalked by her boyfriend’s ex-girlfriend”.
An expert called by the prosecution testified that Conner, Laci’s unborn child, died on Dec 23 or Dec 24, 2002, using a formula devised by by Dr. Phillipe Jeanty. However, the defense alleges that the estimate was not done correctly, and the correct calculation would indicate that Conner did not die until January 3, 2003, undermining the State’s case.
An expert on canine scent detection, Dr. Myers, has concluded that the claim that a dog detected Laci Peterson’s scent at the Berkeley Marina on December 28, 2002, is completely unreliable, and would have appeared completely unreliable to any expert adequately trained in the field of canine scent detection.
The defense claims that a state expert wrongly testified that the bodies must have been placed in the bay near Brooks Island, where Scott went fishing.
The defense has discovered evidence that the Petersons’ gate was open between 10:35 and 10:50 a.m. on Dec 24, 2002. This is very significant, because 15 to 30 minutes earlier a witness had put the family dog Mckenzi back into the yard and closed the gate. The only reasonable conclusion is that Laci took the dog for a walk around 10:30am, meaning that Scott is innocent.
In addition, there were three eyewitnesses who saw Laci walking Mckenzi. Diane Campos saw a “very pregnant” woman walking a dog that looked like a golden retriever with a white marking down the front of his chest around 10:45am. Two days later, Campos saw a poster of Laci Peterson, and stated she was sure it was the same person, and reported the sighting to the police. Frank Aguilar reported seeing a pregnant woman walking a Labrador Retriever some time between 9:30am and 11:00am. Aguilar was sure the woman he saw was Laci Peterson. Finally, William Mitchell also saw Laci and Mckenzi on December 24, 2002.
Finally, a corrections office heard Adam Tenbrink telling his brother that Steven Todd admitted that Laci had seen him breaking into the Medina’s home, some time after 10:35am on Dec 24.
Of course this quick summary is no substitute for reading the full appeal, and I would urge anyone interested in the case to do just that. It is available here.
In this audio interview after the penalty retrial, 14 minutes 20 seconds in, a juror concludes that Jodi lied on the stand.
According to the juror, Jodi testified that when she was looking for a house with Darryl Brewer, they wanted to purchase a house in a good school district, because of his son.
But in earlier testimony, it was stated they only had the Darryl’s son Jack during the summer time.
Juror : “So at that point I felt like, ok, she’s lying to my face, I can’t give any credit to any of her testimony.”
However, in Darryl Brewer’s testimony from the first trial, it was explained that Jack’s mother had plans to re-marry, and move to that area, to be close to Jack. There was shared custody , and Jack would live with Darryl part of the time. So in fact there was no reason to believe Jodi’s testimony was untrue. Darryl was simply doing forward planning for an anticipated change in circumstances.
Were these jurors fit to judge a case of this complexity?