The judge in the murder trial of Sean Fitzpatrick (accused of the shotgun shooting of his lover's husband) prepared the following instruction for the jury:

"A charge is proved beyond a reasonable doubt if you have in your minds after the evaluation of all the evidence an abiding conviction to a moral certainty that the charge is true."

She can be excused for the tortuous syntax, because this is no doubt a "pattern jury instruction" in the State of Massachusetts. You see, each state's court system prepares standard wording for the instructions a judge delivers to a jury before they go into deliberations. The judge has some, but not much, discretion in choosing from among a set of possible instructions and may only reword them at her peril.

Even so, the above instruction, which she reread at the jury's request during deliberations, is a surprising choice, in my opinion. The U.S. Supreme Court has ruled at least once that reasonable doubt instructions need not include the phrase "moral certainty," and, in fact, the prevailing opinion seems to be that moral certainty is an impossibility, especially in a circumstantial case, such as the Fitzpatrick one.

I've been researching the origin of the phrase "beyond a reasonable doubt" for a couple of years. (It's the sort of research I learned to love in grad school). So, I have a lot to say about it, but I won't bore you here.

What I will say is that when the judge read that instruction to the Fitzpatrick jury I knew that at least one juror felt the prosecution had not proved its case.

It's funny, but even though I too felt the case was weak, I also had a sort of gut reaction about the defendant. He seemed like a "type" I've encountered quite frequently in my various careers: someone who's very self-impressed, a geek who thinks he's smarter than everyone else simply because he doesn't hang around with very smart people and probably because he was fawned over by his mother. No, I wouldn't necessarily have voted "guilty" just because I disliked the guy, but I would also have been very uneasy voting "not guilty."

I suspect that the juror(s) who held out and hung the jury was also either a technical-type or a perfectionist, like me. We Hermione Grangers tend to dislike something that the prosecution did in this case: we dislike the appearance of an incomplete investigation. The cops in the Fitzpatrick case (as his lawyer R. Giola pointed out in his closing argument) did not investigate the possibility that someone else had committed the crime. The forensic evidence did not link the defendant to the crime except in the vaguest of ways (his DNA was on the steering wheel of a truck that was suspected of having transported the killer to the crime scene--but which was never proved to be "the get-to and getaway vehicle," so to speak). Computer forensics attempted to prove the defendant's location on the morning of the killing by means of cell-phone triangulation, but in fact it only proved he was where he said he was. This kind of speculative forensics does not bring me to a "moral certainty."

The only aspect of the forensic evidence that influenced me was that Fitzpatrick's DNA was proven to be on a threatening note sent to the victim's family after the crime. The letter implied that the killing was business-related, thus diverting attention from the scorned lover's more personal motive. But the defendant deftly diffused this evidence by taking the stand and admitting he had sent it specifically because he knew the police had decided he was the prime suspect.

I'm of two minds about this: on the one hand, I can see this as the desperate act of a terrified innocent person, and on the other hand I can also see it as a too-clever-by-half attempt to confuse the investigators.

I guess, if I were on the jury, I would have to follow the judge's instructions: there must have been an instruction that said that any evidence that could be taken two ways must be taken in the light most favorable to the defendant; and I would have had to say I had not been convinced to a moral certainty.

What I want to know is why the defendant can still be held in jail when the state did not prove he was guilty?