Anecdotal

Once we were able to get an acquittal in a burglary trial where a group of guys had broken into an unoccupied home to steal some copper piping.  There was some testimony that our client had been with them and there was some testimony that our client had not been with them, but the reason for the acquittal was that the prosecutor had forgotten to charge the defendant as an accessory.  As a result he had to show – because “elements” of the offense – that the defendant had actually physically entered the home himself, and there was an issue about that and we guess we convinced the jury that he hadn’t entered the home or at least that none of us knew if he did.  So not guilty.

Verdicts of not guilty are very rare, so we must have been very clever to do that, except that we weren’t.  We just found a weak spot in the prosecution’s case and tapped it gently enough, or hard enough as the case may be, and it worked out well for us and our client.

Was it a “just” verdict?  We think so.  Do we know so?  Does it matter?  Probably not.  At least not very much.

The point is, this was a run-of-the-mill criminal defense episode, except for the result because a not guilty verdict is always extraordinary.  But the result could easily have gone the other way, too, and there’s no getting around that.

And what if it had, and the defendant was actually innocent and was never even there?  Would that be a “just” verdict?

How fucked up do you have to be to answer anything other than – indeed, very quickly – “NO!” to that question?

But then there’s this:

Hidden in this otherwise very astute expression of the good intentions of the players are two words that give rise to a significant part of the problem: doing justice. You want to do justice, whatever that means?  Be a prosecutor. That’s their job. And the system always needs good, honest, smart prosecutors to do justice.

Criminal defense lawyers? We don’t do justice. We zealously defend the accused. We use whatever tools the law allows to do so.

And what’s SHG’s point?  It’s always the same:

The social justice adoration of feelz doesn’t win cases. Good lawyering does. Let’s bring good lawyering back into fashion.

If a just outcome is unknowable in one case that does not mean it is unknowable in every case, or that there is no such thing as justice – or, for that matter, that justice is no part of a criminal defense lawyer’s job, only the job of prosecutors and judges and juries.

SHG’s approach is unserious.  How is an unserious approach “good lawyering”?

Worse, every criminal defense lawyer, and every criminal defense lawyer’s clients, have suffered and will continue to suffer from being lumped in with SHG and his unserious approach.

Yet we’re also pleased that this approach appears to be on the wane and expect it will disappear into the void whence it came.  And that might also be the main reason we’re not so acerbic and patronizing to younger lawyers.

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5 Comments

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5 responses to “Anecdotal

  1. Jessie

    This made me think of a criminal case that happened here a few years ago. Well, actually, it didn’t happen here. The trial happened here due to a change of a venue because the alleged crime happened in a very small town.

    The school bus driver was accused of molesting girls on the bus. The story was plausible enough. He had supposedly stopped these girls as they were getting off the bus and then touched them sexually over their clothes.

    Over the advice of his attorneys, the bus driver first refused to take a plea. He said he was innocent, the touching never happened, and he wasn’t even going to consider admitting to something he didn’t do.

    His attorneys must have been tearing their hair out, because then over their advice, the bus driver insisted on testifying in his own defense. This was even riskier, because in addition to getting taped statements from the girls at one of those child interviewing centers, the girls testified in person at the trial. Their stories didn’t change between the two statements.

    Given the type of allegations, there was no physical evidence and no witnesses. It all came down to the girls’ statements versus the bus driver’s statements.

    The jury acquitted him. It was stunning. On the stand, he just kept insisting, “I did not do this. No, I’m not saying the girls are lying, but they are mistaken, because I absolutely did not do this.” He even apologized to the girls in open court, saying that he didn’t understand why they had made these allegations, but that he was sorry they were so upset. Clearly, it all played well to the jury.

    So was justice done? I’m not like you. I don’t think every acquittal is a good outcome. If he did molest them, he’s back driving that bus now and has access to kids again. If the allegations were true, the girls were put through a trial only to see their molester go right back to what he was doing.

    That said, I tend to think the jury got it right, mostly because I don’t trust those child interviewing centers. They were born out of the “Believe the Children” movement in the ’80s, and although they do normally train in not asking leading questions, they still tend to believe that every kid brought in was molested. Their substantiation rates are through the roof compared to state child services and law enforcement, which is fishy, especially since many states take children straight to these centers when abuse is suspected, so it’s not like the only children being brought in are those who have already given detailed statements of abuse. Often, these are their very first statements, so substantiation rates should roughly mirror that of CPS and law enforcement, but they don’t. They’re quite a bit higher.

    Another reason I think the jury got it right: The bus driver said he often hugged the kids that he knew well, which was most of them. This was a very small town. It’s not that hard to believe that a kid gets a hug, maybe the kid didn’t really want to be hugged, tells their parents, and the next thing you know the story has turned into sexual touching. The girls were pre-teen/young teen, at an age where it’s normal to be self-conscious about your body. Maybe he accidentally brushed a breast while giving a hug, and the next thing you know that’s turned into a serious criminal charge.

    The lack of physical evidence and witnesses certainly helped the defense, too, although even if the story were true, there wouldn’t be any physical evidence or witnesses. It all came down to the defendant’s testimony. After the trial was over, some jurors spoke to the media and said they ultimately believed the bus driver and his adamant insistence on his own innocence.

    Quite a risk he took though. His lawyers must have been ready to throttle him. Had he come across as defensive or as insulting the girls or accusing them of lying, etc., he might well have lost the jury’s sympathy. He spoke to the media after the trial as well and said that, come what may, he would either go to prison for a very long time or he’d be back driving his bus, but he could not admit to something he didn’t do.

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    • I would agree that a wrongful acquittal isn’t a “good” outcome, I guess. It’s still an appropriate one, and a lot better than a wrongful conviction.

      I think you mostly got the gist of this post, which is that there can be acquittals that are not based on the actual innocence of the defendant, but the example you come back with is also right on the money, because just like the case I had people (or at least some or most people) have a belief in the innocence of the defendant but not to the point where they say they “know”. Way epistemology. Much agnostic.

      One point of interest is that in my case the defendant testified, too, and proclaimed his innocence from the stand. An interview of the jurors after the verdict revealed a consensus that they didn’t believe a word he said, and if it hadn’t been for the confusion about whether he had entered the building they would have convicted him.

      But I’m not sure that’s all there is to it, either. People may not be able to articulate a decision they make with 100% accuracy. There are subtleties.

      My own belief is that they doubted his guilt as a result of his testimony and the other evidence, but more than that when they’ve actually heard this person speak like he’s an actual human being, pretty much like other people they know, there’s more of a reluctance to convict than there would be if he’s just a dark and silent figure sitting at the defense table “all lawyered up” and they never really met him. They’re worried, of course, that he’s lying to them and trying to trick them because their worst fear is to be tricked. But here they had that other basis to acquit that had nothing to do with being tricked, and so they went with that.

      The troubling thing is that fundamentally, they weren’t sure, and that this by itself is not enough for an acquittal, although it’s supposed to be. And just as this would be very much a typical case, this was also very much a typical jury. As a practical matter, the standard for an acquittal is not “reasonable doubt”; it is reasonable doubt plus. Plus what? Some other factor that overcomes the momentum to convict: another suspect, a technical problem with the prosecution’s proof. Something.

      But the other reason I posted this is because it is the quintessential Scott Greenfield-approved kind of win. The strategy at trial has nothing to do with the innocence of the defendant, but rather making a hash of whatever proof the prosecution offers and making a good argument at the end. I’m not saying there’s anything wrong with winning that way, but to him and other CDL’s like him this kind of win is the pinnacle of CDL achievement, and anyone who disagrees just doesn’t “get it”.

      My “disagreement”, if you will, is that this is high risk conduct in a high stakes game and it will work out sometimes and not others, and when it doesn’t there’s another approach that has to be taken: was the guilty verdict just? And if it wasn’t and you’re the lawyer and you played the high stakes game and lost it’s on you to fix it, and pounding the table and reciting the mantra of “there is no truth” and “innocence doesn’t matter” and “there’s no such thing as justice” is a more than a little self-serving rationalization.

      Somebody was looking a this old post yesterday. Maybe it was you! But in any event, in some ways it illustrates the same thing about juries. They saw a figure in a video that must have resembled the defendant somewhat, but it wasn’t, in fact, the defendant. And so barring a true doppleganger-look-alike-twin scenario they must have had doubts but they resolved them against the defendant not in his favor. The lesson? Generally speaking, unless you can do more than raise doubts about a defendant’s guilt, you don’t have a winnable case. And any lawyer who thinks his brilliance and grit and hard work is going to change that is sort of a menace.

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      • Jessie

        As I recall, in the bus driver case, the jury did believe in his actual innocence. He came across as extremely credible—when he spoke to the news after the trial, I believed him too. Even though I know, logically, that such subjective judgments are bullshit. No one can just “tell” via ESP when someone is lying or telling the truth. But my “gut feeling” could still override my brain.

        The closest thing to objective evidence of his truthfulness—and it’s weak and would not have been known to the jury anyway—is that he refused to even entertain a plea. He never wavered in his insistence that he was innocent. I think we sort of take on faith that a guilty person will not be able to maintain that if it’s a facade, but I imagine that’s bullshit.

        The bus driver also had the advantage of being a white male. Would the jury have believed a black man? A woman? Who was that chick….Silly String Mom…? Testified in her own defense and it was a disaster. She was convicted and it’s now regarded as almost certainly a wrongful conviction….

        **disappears to Google for a moment**

        Darlie Routier! She’s on death row in Texas. Claimed an intruder broke in, murdered her two sons and attacked her before fleeing. Her testimony was a disaster. She melted down on cross-examination. Then the prosecution managed to, first, get photos excluded of her injuries. The prosecution was claiming they were superficial injuries that she had inflicted upon herself to devise this intruder story, but the photos of her injuries were gruesome. She was cut up and black-and-blue from head to toe.

        Prosecution got those excluded and then somehow managed to introduce a videotape of Routier at her son’s grave on his birthday where they sang and laughed and released Silly String (hence, she became known as Silly String Mom).

        It was meaningless, of course. If you imagine her son had died of, say, cancer, it just looks like a family remembering him at his gravesite and honoring him with his favorite toy. But the jury requested to view the Silly String video again during deliberations and the video sunk her, because she “wasn’t acting the right way.” And there are different standards for men and women as far as “acting the right way.”

        I kinda think we need ex officio jurors who could guide the process, but who don’t actually have a vote. Too often stories come out later of jurors who bullied a holdout, or juries that have no clue that the defense doesn’t have to prove a damn thing. Or they just clearly didn’t understand the jury instructions. I know juries are supposed to be sacred, but 12 people drawn almost willy-nilly….there’s nothing sacred about that, especially if they don’t understand what they’re supposed to be doing or if a pack mentality forms in the group. If nothing else the jury would have someone to ask questions of without having to send a note to the judge. How many times do juries not understand something, but they just move along rather than ask?

        Anyway, no, I wasn’t the one reading that link—but maybe I’ll go do so now 🙂

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        • Jessie! Another “staged” crime scene case!

          Who knows on that one? I think it’s a long trip from where they are to exonerating her. The circumstances are strongly suggestive of guilt of some kind, aren’t they? The prosecution narrative is a stretch, and if I had been on the jury from what I read I’d probably have voted not guilty, but it’s very suspicious. How are her two sons stabbed to death but not her? Why are the husband and younger son unharmed? Who would do that?

          Here’s a law enforcement oriented take on the physical evidence. There’s supposed to be a lot of DNA testing going on. I assume it’s to find if there’s some match to someone who might have been an intruder, because otherwise it just looks like her, her and her.

          I mean, you’ve got a pretty good argument (not certain) that her wounds were self-inflicted; unarguably, they were far less severe than the wounds to the boys and that’s hard to explain other than you have an intruder who is bent on killing but is easily discouraged by a little resistance.

          But then there’s no motive, no history (so far as I know). Did she have a history of sleep-walking? How does an otherwise normal seeming mommy suddenly become Jack the Ripper on her two boys?

          The jury here probably got it right factually, in the sense that she probably stabbed her boys to death. But there’s more to it than that to determine criminal liability and punishment, if any.

          If she was sleep walking and not conscious and “awake” and stabbed those boys to death as in a dream, the truth is she’s not guilty of anything. But like an insanity defense I think that is just beyond any jury’s ability to even understand, let alone effectuate.

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          • Jessie

            That link was helpful in refreshing my memory. This wasn’t a case I ever paid much attention to, so anything I say about it should probably be taken with a large grain of salt.

            I think the pro-innocence argument, if I’m recalling correctly, was that the family had planned a trip out of town during the time when the murders happened. They hadn’t made any secret of this, and they were quite wealthy—good target for a burglary. Except they changed their plans and stayed home.

            Would an interrupted burglar actually murder anybody? Well, that’s what half of America thought happened in the Amanda Knox case (not that I want to get into THAT again!), but it’s not implausible. And, if interrupted, two little boys would be much easier to harm than a grown woman, at which point the intruder flees when the grown woman fights back.

            The mother’s wounds may have been superficial, but she was severely bruised. And bruising takes a while to show up, so she likely wouldn’t have appeared as badly injured when the police first arrived as she did 24 hours later when she was in the hospital. The photos of her were pretty gruesome and the prosecution somehow managed to exclude them. Would the jury still have believed her injuries were self-inflicted if they’d seen those photos?

            Either scenario is a pretty bizarre story. If I recall correctly, they did find one of the boy’s clothing items (a sock, I think it was?) a few blocks from the house. So if the mom did it, she would not only have had to batter herself severely, then plant the knife in the garage (while leaving no blood), and then plant the boy’s sock a few blocks from the house (again, while leaving no blood). There’s a bit of circular reasoning there, in that one of the reasons Mom was suspected is that the assailant left no blood in the garage—but if Mom was the assailant and planted the knife in the garage, then she didn’t leave any blood either, even though it’s known that she was bleeding by that point.

            So I think there are some solid reasons to believe she didn’t do it, even though it’s quite possible that she did. But that link isn’t entirely physical evidence either. Some of it is interpretation of the mother’s behavior. For example, she referred to the intruder as “they.” People commonly use “they” in the singular. You can’t convict someone based on their improper grammar. (See? I used both second and third person improperly just in that last sentence.)

            And then there was the whole reason I brought it up, which was the mother’s disastrous turn on the witness stand, followed by the jury’s fixation on the “Silly String” video, which I’m sure we would agree doesn’t mean shit.

            DNA testing will probably solve this one once and for all. If no one else’s DNA is on the murder weapon or on the clothing of the victims or on the window screen, then it’s pretty certain that Mom did it. If somebody else’s DNA turns up….well, then it’ll get interesting, I guess. If a non-family member’s DNA turns up on the knife, then they’ve probably found their guy.

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