Lawyers and judges seem to worry a lot about “jury nullification.” From what I’ve read and heard, legal types think that not-guilty verdicts in some trials are a jury’s way of saying they either disagree with the law or they like the defendant and wish to excuse him. I wonder: did the jury excuse Brandon Craig because they liked him or because they had no reason to dislike him?

An example of the first sort of verdict might be (hypothetically) a federal prosecution of a cancer patient who distributes marijuana to fellow sufferers. Marijuana distribution is illegal in the United States, even though some states, such as California, have legalized it for medical purposes. If a federal jury in California found such a defendant not guilty, lawyers would call that “jury nullification” (of the federal law). In my opinion—and I am not a lawyer—this is a perfect example of a verdict that rightly ought to be called “jury nullification.”

An example of the second sort of verdict was O.J. Simpson’s acquittal in his 1995 murder trial. I, however, doubt that Simpson’s public persona as a good guy had much to do with the verdict, and even if it did I don’t think it’s right to categorize an acquittal of a sympathetic defendant as “jury nullification.” What would be “nullified”? Certainly not a law. I suppose it might be nullification of an indictment.

The O.J.Simpson verdict, in my non-legal opinion, was caused by prosecution failures (they baffled the jury with technical mumbo-jumbo and endless “prior bad acts”) and by the jury’s distrust of the witnesses (especially Vanatter and Furman).

Which leads me to my “recurring theme”—namely, that trial lawyers need to tell a good story to the jury. (Marcia Clark told a long-winded, confusing story in the Simpson murder trial.)

The prosecution in the Brandon Craig murder trial made the same mistake Marcia Clark did as regards the witnesses against Craig (they weren’t trustworthy), but they also made another mistake that I’ve been mulling over. I think I’ve finally put my finger on.

Brandon Craig was not the villain of the prosecution’s story. In fact, Brandon Craig was not even a character in the prosecution’s story.

“That’s ridiculous!” you say. “He was the defendant. He was named in the indictment. Three witnesses said they saw him pull the trigger.”

“Yes,” I respond. “But if you discount the three eye-witnesses as completely untrustworthy, then Brandon Craig was not present in the prosecution’s case.”

Compare this to the Simpson prosecution for a moment. Other than the police investigators who testified to the way they found blood evidence and a bloody glove, only one other witness had anything to say that might indicate Simpson was out roaming around in the dark that night—the limo driver. The defense destroyed the credibility of two of the detectives (Vanatter and Furman) by demonstrating not only their bias but that they had the opportunity to plant incriminating evidence. So, once the jury dismissed the blood evidence and the glove, all that remained of the prosecution’s story was a limo driver who said he had seen an African-American man enter the Simpson residence late that night. (That’s not exactly damning when the residence was O.J. Simpson’s).

In the Brandon Craig trial, if the jury decided the three eye-witnesses weren’t credible, what other evidence did the prosecution present that had anything whatsoever to do with Brandon Craig?

I can’t think of a single shred of evidence. No young people who attended a party that night recalled seeing Brandon Craig there. Many of them didn’t even know who he was. The defense presented several witnesses who said Craig was “absent” (my word) from various relationships and places involved in the crime. The prosecution didn’t even present biographical information about Craig (age at the time of the crime? high-school grad? planning for a career? part-time employment?).

What sort of evidence would I have wanted to hear, if I had been a juror in the Craig trial?

Evidence that:

• he was a New Mexico resident and where he lived (close enough to the crime scene?)
• he had graduated from a local high school and could have known any of the witnesses or victims
• he was ever seen in the company of any of the witnesses or victims
• he was part of the drug scene in the community
• he was known to have guns
• he sold drugs to anyone in the community even once
• he had no visible means of support (other than alleged drug dealing)
• he had friends or associates who were known to deal in illegal drugs or guns
• he had any predisposition to violence, such as episodes in high school of bullying people

In fact, I can’t remember any character evidence about him of any kind. Since I’m not a lawyer I could be wrong about character evidence, but it seems to me that the prosecution can present witnesses who have publicly (as opposed to secretly) been threatened by a defendant.

But the prosecution focused exclusively on the three eye-witnesses and all their character flaws. For some reason, they did not subpoena the father of one of the eye-witnesses (“Rick”) who was alleged to have helped his son dispose of the murder weapon. This was only one of the many “narrative gaps” in the prosecution’s case.

One gap a storyteller can never leave up to the audience’s imagination is who the hero is and who the villain is. You don’t even have a story to tell if you don’t tell your audience something about the villain.

The prosecution of Brandon Craig forgot to tell the jury who he was.