Could you be wrong

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.

And that’s the memo.

 

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Ross Harris and Criminal Negligence

It’s my current belief that the State has so far failed to prove that Justin Ross Harris intended for his son to suffer or die, indeed the evidence suggests the opposite.

But what about the claim that he is guilty of criminal negligence?

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.

See also “What is “Child Cruelty” under Georgia Law?” Pate & Johnson law blog, June 2014,

and “Lawyers’ smart move in hot car death” CNN, July 2014.

Update: 15 Nov, 2016. Harris found guilty of all charges.
See here or here.

 

 

 

On Punishment

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.
 
[ Written in response to a comment here ]

Early thoughts on the Justin Ross Harris case

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.

from http://lawnewz.com/high-profile/emotional-testimony-in-day-2-of-justin-ross-harris-hot-car-death-trial/

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

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:

Case summary

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.

  1. 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”.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

McKenzi.png
McKenzi

 

 

 

Invalid juror inference

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?

 

Spouse Murder Defendants in Large Urban Counties

An interesting 1995 study. Some highlights:

While most persons arrested (70%) for spouse murder were charged with first-degree murder, most persons convicted (52%) of spouse murder had negligent or nonnegligent manslaughter as their conviction offense.

..

The average prison sentence for unprovoked wife defendants was 7 years, or 10 years shorter than the average 17 years for unprovoked husband defendants.

..

Wife defendants had a lower conviction rate than husband defendants
* Of the 222 wife defendants, 70% were convicted of killing their mate.

By contrast, of the 318 husband defendants, 87% were convicted of spouse murder.

..

* Of the 100 wife defendants tried by either a judge or jury, 31% were acquitted. But of the 138 husband defendants tried, 6% were acquitted.

..

Self-defense as possible explanation for wives’ lower conviction rate
In certain circumstances, extreme victim provocation may justify taking a life in self-defense. Provocation was more often present in wife defendant cases, and wife defendants were less likely than husband defendants to be convicted, suggesting that the relatively high rate of victim provocation characteristic of wife defendant cases was one of the reasons wife defendants had a lower conviction rate than husband defendants. Consistent with that, of the provoked wife defendants, 56% were convicted, significantly lower than either the 86% conviction rate for unprovoked wife defendants or the 88% conviction rate for unprovoked husbands

My thoughts on reform

Some thoughts on how to reform the criminal justice system in the USA.

1. Eliminate the death penalty and very long sentences.

A culture of excessive sentencing has built up over a period of the last few decades, doubtless fuelled by public anger about crime.

I believe

(a) Nobody should be sentenced to more than 20 years before parole is considered.

(b) For people who maintain their innocence, this should not be a barrier to release.

(c) Behaviour while in prison should be the main factor in determining whether an offender may be safely released.

(d) Monitoring technology should be used for those who are released on probation. Sex offenders should be offered treatment and/or technology to assist them with not re-offending, as a condition for release.

There are multiple reasons for eliminating excessively harsh sentences.

(a) Very few people will be the same criminal that they were after serving a 10 or 20 year sentence, especially if they are young when convicted. Most people do deserve a second chance.

(b) Excessively harsh sentences do not deter crime, and can provoke it. Excluding wrongful convictions, no prisoner should feel their sentence is unjust.

(c) It is unfair to those who are wrongly convicted – and this will always be a possibility.

(d) Incarceration rates are currently excessive.

2. Educate police, prosecutors and juries on wrongful convictions, and the real danger of convicting someone on weak evidence. Ensure that expert testimony is based on proven science. Jurors should be cautioned NOT to attempt to function as unreliable “human lie detectors”, instead they should focus on the content of witness testimony.

3. Criminal trials should be kept short. If the prosecution has credible evidence, it should be able to make it’s case in two or three days of testimony at most, and very lengthy cross-examination of defendants and defense witnesses should not be allowed.

4. Experts should be required to prepare reports for the jury, and these reports should be subject to anonymous peer-review. Defense attorneys should be able to flag reports for peer review, pre-trial.

The investigation should be DOCUMENTED. That means recording everything  that can be recorded with photographs and videos, especially ALL interviews, the crime scene and the autopsy.

5. Prosecutors should not be allowed to inflame juries, the only task for a jury should be to determine facts.

6. The jury should be given a written summary of the evidence by the judge before considering their verdict.

7. The jury should be required to give a written summary of their reasoning when they return their verdict. They should specify any evidence about which they have doubts, especially if further investigation or information could resolve those doubts.  If necessary the trial should be adjourned to allow such investigations to be completed.

8. Sentencing should be done by judges not juries.

9. Defendants of good character who are convicted on uncertain evidence should be given early parole.

10. Misconduct is a serious issue. I believe absolute immunity for prosecutors from wrongdoing should be removed, and all information and evidence held by the State should be disclosed to defense attorneys. In addition law enforcement ( police, prosecutors and judges ) should NOT be directly elected, as politics and justice do not mix well.

11. The appellate system needs to be functional – to actually right wrongs, ensure that convictions are SAFE – and not just procedurally correct. The standard for appeal should be whether the prosecution case really was objectively proved beyond a reasonable doubt, not simply that the jury returned a guilty verdict.

Discussion Here.

References

“Decades ago, the UK encountered a similar roadblock to fair policing. A national law, the Police and Criminal Evidence Act of 1984 [PACE], however, subsequently required officers to videotape their interviews, among other provisions.” see A recurring problem in ‘Making A Murderer’ used to be huge in the UK — and the country figured out how to fix it

 

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