Eyewitnesses can’t be trusted?

Here is an innocent man who spent 30 years in prison for a rape he didn’t commit. Seattle Times article. Because of cases like this, this Seattle criminal defense investigator is against the death penalty. Because of cases like this, this investigator is strongly motivated in my criminal defense and personal injury cases to get the best information from witnesses that I can and to expose unreliable witnesses when I find them.

Eyewitness identification is unreliable. We’ve known that for a very long time. An eyewitness can be honest, but wrong. An eyewitness can be confused by a variety of factors. An eyewitness can lie for a variety of reasons. An eyewitness can be manipulated by careless or unscrupulous law enforcement officers. In the absence of substantial collaborating evidence, why do we continue to accept eyewitness testimony as sufficient to convict anybody of anything?

Advertisements

Juries trump judges?

Juries trump judges?

And prosecutors and legislators?

While I’m on the subject of jury duty, here’s a peculiar feature of the law that some prosecutors and judges and others in the legal field seem to be afraid might become general knowledge.

Jury nullification

General public knowledge of jury nullification might put greater power in the hands of juries than that held by judges, prosecutors and legislators (in a very limited but useful sense).

The concept of jury nullification challenges the idea that, in the courtroom, judges interpret the law and juries interpret the evidence and render verdicts under the instructions of the judge regarding the law and its application.

Jury nullification allows the jury to ignore the judge’s instructions and, in essence, nullify, or throw out, the law or its application in the specific case being tried. Jury nullification is the finding by the jury that either the law is a bad law or it is being applied improperly in a specific case.

The concept is centuries old and is based in Common Law, which is part of the foundation of our legal system. Its history in North America starts in 1734 when a printer named John Peter Zenger was acquitted of seditious libel, contrary to the instructions of the judge hearing the case.

Jury nullification challenges State power. As such, it is a dangerous, subversive and powerful tool for maintaining the peoples’ hold on power.

It has a potential dark side. Theoretically, it could be used by a jury of racists or homophobes to acquit a person guilty of a hate crime.

On the other hand, consider the medical marijuana controversy. What if juries in Federal courts refused to convict medical marijuana growers, distributors and users in States that have legalized such use? Could the Federal government continue to interfere with the medicinal use of a proven, beneficial and natural drug?

There are a lot of questions that come to mind as I study jury nullification; I’m just getting started. It’s not my purpose here to expound on a complicated and controversial subject. I would be happy if a few of my readers pursued the study, on their own.

Following is a list of web-based resources. Google for more.

Reactions?

http://www.fija.org/

http://en.wikipedia.org/wiki/Jury_nullification

http://www.levellers.org/jrp/

http://www.crfc.org/americanjury/nullification.html

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

Justice System Saved?

They didn’t have a case and they wasted my taxes, but the system ultimately worked.

My first and only experience on a jury was an eye-opener and, in fact, very disturbing. I had been called to jury duty a couple of times before but had never ended up serving. I was actually looking forward to the experience. I got more and less than I expected on the third call to duty when I survived the selection process and was actually chosen for the jury.

The defendant was charged with trading crack for cash. The SPD had been conducting a sting at the busy drug market on the SE corner of 2nd and Yesler in Seattle. SPD officers were everywhere in plainclothes and in uniform, in marked and unmarked cars and on bikes, on the street and on rooftops.

This should have been an easy bust but wasn’t as the seller spooked after taking the plainclothes  officer’s money and handing over the crack in a baggy. The seller made the trade while sitting in his idling car at the curb with the buyer standing on the sidewalk. Something about the situation caused the seller to panic and run.

He took off southbound on second and turned left to go east on Washington. He blew the 4-way stop at 3rd and the stop sign at 4th, a very busy, three lane northbound road. He headed uphill to 6th and turned north towards Yesler. He almost ran over two bicycle cops and evaded hot pursuit by an officer in a marked squad car when the officer stopped the pursuit for safety reasons.

The seller got away and was not arrested ‘til months later. He was arrested for the sell during the sting described above; the arrest was based on identification of the seller by the buying officer. The prosecutor decided there was enough evidence to support prosecution. This led to the trial where I got some education about how the system sometimes works.

The prosecution’s case consisted of: Officer X says the defendant was the person who sold him the crack. The prosecution had no other witnesses, no tie in to the seller’s vehicle, no marked money, nothing but the officer’s assertion.

The prosecution managed to mention that the defendant had a record. The judge rightly ordered this struck from the record and told the jury to ignore the information.

The defense denied the accusation and said the officer was mistaken. It came down to one man’s testimony versus the other’s. Prosecution and defense had made their cases; it was time for the jury to decide.

I was a bit perplexed. My reaction to the trial up to this point was that the defendant was likely guilty, but the prosecution hadn’t proved it. Furthermore, it seemed to me that the prosecution must have counted on the jury to be ignorant and prejudiced. I was wondering why the prosecutor had wasted our taxes for such a weak case.

The defense attorney had failed to point out the weakness of the prosecution’s case.

The judge’s instructions to us were to decide if the defendant was guilty, beyond a reasonable doubt. If a reasonable doubt existed, we were to find the defendant not guilty.

We began deliberating and immediately deadlocked; six said guilty and six said not guilty. Guilty versus not guilty really boiled down to six saying the prosecution had proven the defendant’s guilt, beyond a reasonable doubt, and six saying there was reasonable doubt of the defendant’s guilt and, therefore, we should find the defendant not guilty.

Notice that I said that six said he was guilty and six said there was insufficient evidence to affirm guilt. Actual guilt could never be known by anyone but god and the defendant. The faction that said he was guilty actually said that the defendant must be guilty because the police officer said he was.

On top of my observations about the prosecution and the defense now I had to reconcile the idea that a jury of twelve is not such a reliable group to make decisions having such consequences for a defendant’s life.

The bad thing was that six of twelve were so ignorant of the concepts of  “innocent until proven guilty” and “reasonable doubt” and so willing to bow down to the power of the government in the form of law enforcement. The good thing was that the other six of us were able to block a railroad job by the same forces.

A system in which the police, as agents of the government, have the power to act as law enforcement, judge, jury and executioner is commonly known as a fascist state. I still have concerns about the experience I had in that court. That experience still resonates in my experience as a private, legal investigator. It is one reason that I have such a burn about the work.

It takes diligence on the part of each player in this process to make it work properly. It is critical for the health of our system of laws that all citizens have an appreciation for how the law is supposed to work.

After all, whose interests are at stake in the court rooms of this country? If you don’t understand that it is the interests of us all that are at stake, we are in a whole lot of trouble.

You reactions? Your experiences?