Reasonable Doubt Defense--Not Reasonable, Not Effective

Long before I was selected to serve as a juror in a criminal trial, I recognized that most "reasonable doubt" defenses are simply DOA. Why? Because they rely on revealing chinks in the prosecution's armor rather than tearing the armor off the body of the prosecution's theory of the crime. (A ghastly metaphor, but at least it involves the idea of a life-and-death struggle, which a criminal trial is.)

I'm a storyteller. Trial lawyers are supposed to be storytellers, too. Prosecutors always have a story to tell the jury (and they almost always tediously employ the metaphor of a puzzle to give it coherence). But, for some inexplicable reason, defense attorneys seldom present a coherent story; instead they rely on nitpicking the prosecution. Then, in their summations, they threaten the jury with the duty to find the defendant not guilty if they have any reasonable doubts about the prosecution's case. The implication is that a jury that finds a defendant guilty, despite the failings of police and prosecutors, is stupid or vindictive. This is foolish. It's poor rhetoric. It's not storytelling.

In every high-profile trial in which the defense had the guts to tell a story, the jury has either found the defendant to be not guilty or has been unable to reach a consensus that the defendant is guilty: O. J. Simpson, Michael Jackson, Phil Spector. What do these defendants have in common? They walked. They had attorneys who presented a substantial defense case.

In every high-profile trial in which the defendant was found guilty--despite excellent cross-examination of prosecution witnesses by the defense--the defense attorneys declined to present a case or failed to present a substantial case for an alternative theory of the crime. The most-glaring example of this is the Scott Peterson trial. Other examples include the juvenile Cody Posie, New Jersey nurse Melanie McGuire, and Neil Entwistle.

Let me be very clear: I am not saying that I think O. J. Simpson, Michael Jackson, and Phil Spector are innocent or that I think Scott Peterson, Cody Posie, Melanie McGuire, and Neil Entwistle are necessarily guilty of the crimes of which they were convicted. I'm saying that all of these defendants' lawyers are entirely responsible for the juries' verdicts. (I do recognize that some of the lawyers were fighting an uphill battle against poor judges. In several of these cases, the judges admitted highly prejudicial, irrelevant evidence. But that's another post altogether.)

O. J. Simpson: This was not jury nullification. This was a good defense. The "Dream Team" not only tore away at the chinks in the armor, it also made a case for racial bias on the part of the investigators and presented evidence (no matter how flimsy) of possible drug involvement on the victims' parts, which could have led to a drug-related murder. This is what reasonable doubt is supposed to mean: the jury had many reasonable doubts about the blood evidence and the objectivity of the police investigation. They also had a reasonable alternative scenario to consider. The prosecution also made a fatal error: its case was overkill. The endless discussion of statistics served no purpose but to convince the jury (in the pre-CSI era) that the DNA evidence was just so much smoke.

Michael Jackson: The defense quite properly attacked the credibility of the accuser and presented an alternative theory, namely, that the accuser's mother was a gold-digger (and frankly that much was clear--in my opinion, the prosecution ought to have charged her as one of the conspirators).

Phil Spector: This trial is a classic example of my "case." The prosecution presented an excellent, coherent theory of the crime--with one small flaw (the victim's mood on the evening of the crime was not clearly established). The defense, however, presented a thorough, plausible alternative story (thorough, IMHO, except for the issue of the defendant's actions after the shooting but before the police arrived).

Cody Posie: This juvenile defendant was accused of murdering his father, his stepmother, and his stepsister. There was no question as to whether or not he killed them. The issue before the jury was whether he was capable of forming an intent at the time of the crime. The jury found him guilty, although ultimately the judge sentenced him as a juvenile so that he could receive psychological treatment in a juvenile detention center. The defense made an excellent case for Posie having been driven to the act by years of physical and psychological abuse, and the prosecution was abysmal: the lead prosecutor seemed too up-tight to be able to admit that the father, stepmother, and stepsister could have had a kinky sexual relationship from which Posie was excluded or in which he was a reluctant participant. But this flaw in the prosecution was also a flaw in the defense. The defense attorney (though very dramatic and passionate) never explained for the jury why Posie killed his stepsister. After all, it was his father (and to some extent his stepmother) who abused him. The jury clearly believed the defense, since they found Posie guilty of lesser offenses for killing his parents. The defense failed to emphasize the evidence that the stepsister had repeatedly snitched on Posie to their parents, which had instigated several episodes of abuse. This was ample cause for him to vent his anger on her during the episode of "madness." In addition, evidence of the stepsister's sexual involvement with her stepfather was not presented at the trial, presumably because she was a juvenile. But there were hints of this in testimony. For example, I believe that a ranch hand testified that he had seen the father and stepsister exiting a barn (apparently with straw clinging to their clothing) where no work was required. But the defense "tactfully" (?) avoided calling attention to any of this. (The ranch-hand's remarks may have been off-the-record, as were the other hints about the stepsister's behavior.) In other words, the defense was not coherent. The jury had no choice but to find Posie guilty of first-degree murder of his stepsister.

Melanie McGuire: This New Jersey nurse was accused of shooting her husband and then dismembering him in their bathroom after draining all the blood from his body. The prosecution's case was highly flawed, and the defense cross-examination of their witnesses was stunning. The defense proved (to my satisfaction) that the defendant could not possibly have committed the crime in the apartment as alleged or have dismembered the body there. It was clear to me that she would have needed an accomplice, and her lover (a doctor at a fertility clinic) was the most likely candidate--he just so happened to have purchased a buzz saw right before the murder. But--for some inexplicable reason--neither side wanted to discuss the possibility of an accomplice. The defense was skimpy (a pattern that I'm beginning to discern in all reasonable-doubt cases), but they did present an excellent scientific witness (to counter some junk science presented by the prosecution). Then, in summation, though, the defense failed to connect any of the dots. The most glaring lacuna (and one which the jury seemed to focus on, if their questions for the judge are any indication) was a failure to explain a certain Fed Ex package the cops received. Given the evidence, the jury had no choice but to believe the prosecution's theory that the defendant sent the package in an attempt to cast suspicion on "the mob." Since the package contained the victim's ring and other items, it was obviously sent by the killer. The defense ought to have connected these dots to someone else or explained the package in some other way. Every defense must connect the dots to form a coherent story.

Neil Entwistle: I've written about this trial previously. The defense did not present a case, even though they had the excellent defense of Phil Spector as a model for a case of victim-suicide. I can't figure out why the defense brought on no witnesses. The Entwistle family was present in the courtroom throughout the trial--inviting the jury to expect them to testify about the characters of the defendant and his dead wife. The jury surely took this as an admission that they could not find any evidence of suicide to present. I know the instructions always say that the jury is not to hold the failure to present a case against the defendant, but in lieu of a coherent story, the jury had no choice but to accept the prosecution's theory.

Again, let me be very, very clear. I have my opinions about whodunit in all of these cases. I'm far from certain that any innocent people were condemned unjustly.

Still, defense attorneys don't always defend their clients, even though they have sworn to do so. I sat in a jury box and listened to a public defender state in his opening that his client was guilty of two of the three charges to which he had pled "Not Guilty." And I firmly believe that defense attorneys are taught in law school how to defend based on a case of reasonable doubt. But this is foolishness.

A case of reasonable doubt is no case at all.