CRIME AND ITS FASCINATIONS : THOUGHTS ABOUT CURRENT MASSACHUSETTS MURDER CASES

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PART VI : VERDICT

When we first started writing this Series — Crime and Its Fascinations — Massachusetts Murder Cases — all attention was on a Big Three : James “Whitey” Bulger; Dzhokhar Tsarnaev; and Aaron Hernandez (who has yet to be formally indicted). Much has happened since. First, along came the Zimmerman verdict — in Florida, but of major impact here in Massaachusetts too. And now we have to add the murder of Amy Lord, right here in Boston, to the list of local crime. So be it.

There will be plenty for Here and Sphere to say about all three of our major cases — still under way — and surely a whole lot to say, and learn, about the Any Lord murder, an event that reminds us all too mournfully of several similar local killings ; that of Molly Bish, for example, or that of Alexandra Zapp, back in 2002, in a women’s bathroom at a rest stop on Route 24; or of Christa Worthington a few years ago on Cape Cod. One wants, needs to ask “why ?” We at Here and Sphere ask ‘why” as well.

Still, our Crime and its Fascinations series has focused on trials: the preparation for trial, the trial itself, and now the verdict. The murders are very different, but the process is the same — more or less. It must be. It is that sameness upon which society bases its taming the barbarity of murder.

So then : what Is a verdict ?

We think of a verdict as the jury’s finding. It need not be so. In some criminal trials the defendant chooses to be tried by a judge. In such case, the judge makes the finding. He or she applies the law and decides upon the evidence of fact.

There’s one other trial situation in which the judge, not a jury, makes the decision : directed verdict.  After the prosecution rests its case, the defense may move the court to direct a verdict of acquittal. If the judge finds that the prosecution’;s evidence, taken in its most favorable light, cannot reasonably support a verdict of guilty, he or she will “direct a verdict” — because there is nothing that needs a jury to consider — and the trial ends.

The defense can also moves for a directed verdict after it finishes ITS case. In the recent Zimmerman case, some observers felt the prosecution’s work so iffy that directed verdict should have granted. It wasn’t; but sometimes a motion for verdict-directed is granted. Very embarrassing for a prosecutor…

These exceptions aside, almost all murder trials are heard by a jury, and such is the common notion, So let’s ask again : what is a verdict ?

A verdict is the jury’s assessment of whether the facts as evidenced at trial support the charge. Do the facts determine the charge beyond a reasonable doubt, or do they not ? Most jurors are not lawyers, and they are asked not to think as such but as ordinarily diligent citizens applying common sense and maybe some street smarts as well. The applicable law of the charge is read to them by the judge, in his or her instructions (and these, as we know, can influence the jury correctly or not, as the case may be), and the judge must take great care to instruct his or her jury in a way that does not prejudice the jury’s thinking. Juries give the judge’s instructions great respect — how can they not ? — and that respect almost inevitably sets the jury’s deliberations on a course.

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However, make no mistake : most jurors do form their own opinion of the evidence — credibility of witnesses, conclusiveness or not of the forensic evidence, etc. — and go into the deliberation remarkably well prepared to argue for their opinion of it all. In most major cases, much deliberation ensues, because almost all jurors take their duty very seriously and really do defend the house of their opinion vigorously. We tend to think that in a case such as the Zimmerman, in which the jury began its discussions split 3 to 3, that one side or another simply “caves.” Almost certainly that does not happen at all. Jurors do not easily surrender their opinion of a case. Argument becomes intensely detailed, back and forth, and unanimity — which our criminal law requires of a jury — gets reached only when those changing their opinion really do decide that it merits changing. Juries understand that in a murder trial they have the fate of the defendant in their hands — and the concerns of the victim’s family. They care deeply about both. Nobody should ever conclude that a jury makes its finding lightly even when it is unanimous to begin with, much less when it starts its deliberation split.

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The argument and the opinions at hand, the jury then — hopefully — reaches a unanimous conclusion. It makes what we call a “finding.” It finds that the facts as presented at trial either support the charge beyond a reasonable doubt or not. So, what is meant by “beyond a reasonable doubt” ? It’s a term in law — not fact — and a key part of any trial judge’s instructions is to set forth the law’s definition of “beyond a reasonable doubt.”

Our definition is as simple as we can make it. In order for there to be reasonable doubt about the evidence, it must support an alternative view of the facts — an alternative that is not merely speculation but has identifiable basis in the evidence itself — to the one put forth by the prosecution. One can suspect, or have a feeling, that the evidence presented may lead to a different conclusion, but suspicion or feeling, though species of doubt, are not reasonable doubt. Reasonable doubt must have a reason.

Whether or not the evidence meets the beyond a reasonable doubt standard is the ONLY finding that a jury is asked to make. It is not asked to question the applicable law, or to follow a hunch, or to import a charge different from the charge(s) made by the prosecution. And the jury that makes this finding must be composed of persons who have not, prior to trial, formed an opinion as to the defendant’s guilt or not. (This was not always so at all. In our law’s early centuries, juries were called from those who had personal knowledge of the matter and were asked to give their narrative of what they knew of it. The idea being that only those most knowledgeable about the circumstances could best get at the truth or falsity of the charge.) We require this more difficult standard because our society holds criminal charges to be so serious that only the most rigorous removal of bias of any kind can render a trial and verdict that gets it right. Almost none of us wants a person falsely accused to have to endure trial, much less be found guilty.

Thus a jury verdict is a finding in which the strictest proof test in all of our law is applied to facts presented. Free as possible of hunch, or inclination, speculation or mistake, a jury verdict almost always disappoints, even outrages, m any who stand outside the trial and do not bear any responsibility to the law or the facts, persons who make their own conclusions as to what happened or did not happen and who think that said conclusion should command the law. These people’s feelings are understandable, because murder is, and must be, an emotional thing, a horrifying thing calling for punishment. But understandable is not the same as responsible. The jury is responsible.

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All that stands between the public’s emotions and potential injustice are the jury and its verdict. They are the safeguard of our civilization’s civility.

—- Michael Freedberg / Here and Sphere

 

NOTE : this story was updated at 1.30 PM on 07.27.13

CRIME AND ITS FASCINATIONS : SOME THOUGHTS ON THREE MASSACHUSETTS MURDER CASES

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PART V : THE TRIAL

Assuming that a high-profile murder case can make it past trial preparation in reasonably useful shape, it finally goes to trial.

So, the question needs be asked: what IS a trial ?

To the gut-reaction public, a trial is an action by which the public’s judgment of the outcome is confirmed. If the public thinks an accused guilty, the trial is supposed to find him gulty. If the public thinks an accused is not guilty, the trial’s job is to find him or her nor guilty.

In the pre-Civil Rights South, trials, of Black people most of all, were exactly what I have said above, except that a finding of not guilty was never an option. To bring an accused to trial was to obtain a guilty verdict. No more, no less. Today we do it differently. We are prepared — so we say — to accord the accused a fair trial, complete with defense lawyers paid from public funds if need be and a jury carefully selected by both sides. Rules of evidence are accepted. The jury is allowed to deliberate for as long as it pleases them. Yet a verdict of guilty is expected, in the end, just as back in the old South.

A trial, however, is not that AT ALL. A trial is a procedure for getting at the truth of the matter, let the chips fall as they may. Impartiality is the guide. A trial has no expected outcome other than that the outcome will be as close to the truth as is feasaible given that human minds and procedures only approximate.

As this is what a trial is, it’s not at all a given that the public agrees that there should be trials of high-profile murder cases. The public says it does, but its actions in high-profile criminal cases say otherwise.

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Nonetheless, we have trials, and those whom we entrust with governance in our society are unshakably committed to having trials and ensuring their fairness. Grumble though we might, we at least allow trials to take place without interference. Court TV, no doubt, has helped to give the public an interest in letting trials take place according to the rules. By “rules,’ we mean the presentation of evidence, its cross examination, and attorneys’ summations before and after the presentation of evidence.

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Whole libraries of hornbooks have been written on the Law of Evidence. (The best is the classic treatise, Wigmore on Evidence.) We cannot do an extended discussion of Evidence Law here, but suffice to say that it includes all the familiar — but very difficult to apply — “Law and Order” cliches : the rule against Hearsay, the admissibility of death bed speech, forensic findings, surveillance camera footage, witness testimony, confessions, authentication of records, evidence illegally obtained, telephone messages, and the like.

The basic rule of admissibility is this : does the evidence help to get at the truth ? Or is it prejudicial, or irrelevant, or self-interested, or otherwise unhelpful ?

Does it go without saying that conjecture is not evidence ? An expert giving expert testimony is permitted to give an opinion. No one else may do so. Can I add that race prejudice abiout the accused, and such like, are not evidence ?

Unfortunately, those of us who watch a high-profile trial on TV, or read about it in the news, have nothing to offer a trial except opinion, conjecture, or even, for some of us, race prejudice. Because that is all that we have; because we are not even in the courtroom, where presentations play out differently than as filtered by media, and where boredom is the usual sound; because we feel strongly about the ccas — if not, it would not be high profile — we tend to decide the outcome of a trial on grounds that must play no part in that trial ! Ironic, isn’t it ? But none theless toxic to the administration of a trial.

Thus the dilemma that continues present in today’s criminal law : we say we wnat fair and impartial trials, but we do not. We say we want the jury to reach ITS verdict, but in fact we wnat it to reach OUR verdict.

We want these things vehemently, noisily, frigheningly.

Given what we are like in this regard, it’s a wonder that trials — real trials — exist at all. Perhaps it’s the innate skepticism that also resides in our souls, along with the conjectural certainty, that gives trials room to breathe, and flower, and produce — one hopes — their fruit of truth.

—- Michael Freedberg / Here and Sphere

PEOPLE v. ZIMMERMAN : A PORTENTOUS FINDING

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He is smiling tonight. He killed an entirely innocent 17 year old boy, and he is found not criminally culpable.

George Zimmerman not guilty ? Hard for us at Here and Sphere, who were not in the courtroom, to dispute a jury’s finding. We felt strongly that Zimmerman was criminally culpable, at least to the extent of manslaughter. He initiated the chain of events, he stalked Martin, he deemed Martin a suspect, he put Martin in  fear, he did not identify himself, he allowed Martin to feel that he needed to defend himself.

Reasonable doubt, however, there sure was, about the level of wrong in Zimmerman’s actions, in a case difficult for a jury to grasp the facts of. Faced with a criminal verdict standard of “beyond a reasonable doubt,’ the jury eventually — after two days of thorough deliberation — decided that reasonable doubt existed.

Not doubt that Zimmerman was wrong. Wrong he was. Doubt about HOW wrong. Manslaughter wrong ? Manslaughter requires the conduct leading up to it to be reckless. Not merely negligent, or mistaken, or tortious, but reckless.

We at here and Sphere felt that Zimmerman’s conduct was reckless, given that he disregarded police advice about following Martin. The jury gave Zimmerman the benefit of their doubt about that. Legally, they had ample grounds for doing so. Nor do we question the jury’s diligence or its obvious concern to “get it right.” Still, their finding has consequences for civil peace in Florida.
The not guilty finding makes it clear that, in Florida, a man who follows another, in the dark, unidentified, and putting you in fear, is going to be given the benefit of the doubt if an altercation ensues, and YOU ARE NOT. Thus you had better be very very careful if you find yourself in that position. Very careful and PRAY.

We would have hoped that the jury would consider the above and other public policy consequences of a not guilty finding. It is hard for us to imagine behavior more blameworthy than Zimmerman’s on that night. This entire event could have been prevented if he had simply listened to the police 911 operator.

But no, he HAD to go do what he did. And now we know that a jury, a year later, is not going to second-guess him to a criminal extent.
 In Florida, a stalker with a gun will now know that he has the benefit of the doubt — because doubt, there is — if he does what Zimmerman did — disregard police advice ! — and an altercation ensues.
There is only one way that Florida can resolve the terrible public policy consequences of this finding : pass legislation disallowing association watchpeople from carrying loaded weapons.
Do you think that such a law will pass, in the current national climate about guns everywhere ? We think it extremely unlikely, at least in Florida and in about 30 other of our 50 states..
 What is more likely to happen, in a state like Florida, where concealed carry of loaded guns is common, and where a “stand your ground” defense is permitted, by law, in trials involving shootings, is that many more ordinary people will now arm THEMSELVES, so that if they find themselves in Martin’s position, they can shoot the stalker if they think they have to. Then THEY will have the benefit of the doubt on their side.
 This finding opens the door to anarchy. Guns will be the answer. Guns and shooting, injury and death. That or else a ton of fear. Or both.

It is not a happy day in America. but it hasn’t been a happy day, as far as shocking gun killings are concerned, for many, many, many years in this nation fixated on — obsessed by — insisting on promoting more of — armed vigilantes everywhere.

— Michael Freedberg / Here and Sphere