On The Justinian Codes (Corpus Juris Civilis) of Jurisprudence vis-a-vis Steven Avery
I marathon watched the Netflix docu-drama, Making a Murderer, last week, in what essentially amounts to The Life and Times of Steven Avery.
In a nutshell: He was wrongly convicted of rape in 1985, served 18 years in prison, before being exonerated by both DNA, and a confession by the guy who actually did it; and because the county ignored the exculpitory evidence of his likely innocence at least twice post-conviction—forcing him to serve at least an additional eight years before finally being exonerated—he sued the county for $36 million in 2005…and at the point where two county employees were added to the civil complaint personally, and were being depossed, Steven ended up with a murder investigation and prosecution on his hands: and importantly, investigated—with evidence gathered—by those same people facing life devastating civil judgments.
Yea, it’s pretty riveting. It’s also, in se, grounds for rationabile dubium. But let me probare causam meam.
I’ve seen a number of pieces since this has exploded internationally. Nothing I’ve seen yet—these two pieces just yesterday, pro and con the murder conviction: Dead Certainty and Making a Murderer, “Biased” Journalism & Necessary Outrage (h/t: Mike Eades’ excellent monthly book and reading reco posts)—are particularly satisfying to me.
It’s like this, for me. Everyone is turning on guilt or innocence, evidence pro and con, and since short of red-hand-in-cookie-jar certainty, the principles that began to be laid down in jurisprudence nearly 1,500 years ago—predating even The Muslim Menace—are intended to put the burden of proof on the accuser. Ideally, a defendant ought be able to just sit there, and it’s decided—whether by judge alone, or jury—whether a stiff burden of proof has been met. And if not: acquittal. That means: no moral or legal judgment on guilt or innocence, and you live with the double-edged sword of Enlightenment and civility. In another nutshell: you just didn’t prove it.
But we hate the word acquittal, don’t we? It’s like a job didn’t get done. Someone’s guilty, and someone must pay! AmIright? And we equally hate the true American judgment of Not Guilty, and especially so; since it conveys a connotation of innocence, even though we may feel a defendant is guiltty in our hearts. I believe Britain uses Not Proved, and that’s way better.
…Families of victims are the worst thing to ever happen to American criminal justice around courthouses. Not once in my life have I seen a single one of them bring a gram of a question to a prosecution’s case. The media fawns over them, as though their emotions are evidence and their feelings, legal doctrine. They do it to sway public opinion to their state whores and bedfellows (so much for freedom of the press)…and the end result is that a defendant’s presumption of innocence (should be a presumption of not proved) is turned into the State’s presumption of virtue: chastity, worth, justice, love of mothers and excessively kissed babies, rainbow farting-unicorns, and anything else the State bestows…like free stuff, without costs. The defendant’s presumption of innocence (or better yet, of not-proved) gets overshadowed by the production value of a “free press.”
O.J. Simpson and Michael Jackson are cases like that, for me. Both were tried for State crimes; the former, for double-murder and the latter, for child molestation.
I feel in my heart that OJ Did It. But, I also think the prosecution didn’t prove its case (partly because of gross incompetence). Not Guilty, which is unfortunate, because that’s not what I really mean, morally, but it’s a legal, not moral distinction. I believe he did it, but the State was unable to prove it beyond a minimum of one or more reasonable doubts, so he walks. C’est la vie.
In the Jackson case, I didn’t even think he fondled or otherwise abused boys. I thought he was a consummate weirdo, with enough wealth to protect a level of privacy that ultimately raised lots of speculation and suspicion; but it wasn’t proved, by a long shot. He was just really damn weird, and weird as he may have been—wanting, and being able, with action, to cuddle between silk sheets with a fan-boy is not yet a crime in America.
But basically, the only thing to really understand is that those without $10 million, or thereabouts, to pay the attorneys able enough to educate the jury in exactly what I’m writing about, go away for decades to life.
And families and the public are content about it, because someone has to pay. Or, anyone can pay.
I’m not at all about bleeding heart, but about certainty to a level where I could not possibly use the State as a weapon and means to deprive an innocent man of his one and only life, and I accept the error and fallibility of human existence, as both cost and consequence. I want to ere on the other side.
…The Innocence Project has thus far overturned 337 cases on DNA evidence alone, which means: falsified conviction. It means: 12 people, acting in unison, at the behest of the omnipotent state prosecutor, got it 100% wrong in unison and accord…did not extend any scintilla of a microgram of presumption whatsoever to the defendant, while extending any possible tonnage of presumption they could scratch up to the State prosecution…and 12 jurors sucked State cock unanimously.
By my count, that’s 4,044 American jurors who wrongfully incarcerated men for hundreds of years total, who very rightfully ought to have self inflicted gunshot wounds to the head. They should know who they are. Anyone living a life without moral justification ought know who they are.
In my mind, all of them have forfeited any claim to life and the moral principal to be let to it, unmolested.
Ei incumbit probatio qui dicit, non qui negat.
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I agree with your overall point, but a bit harsh on the jurors, no? A good portion probably did ignore the required burden of proof to convict (and they’re awful people), but I’m sure a number of cases had piss-poor defense teams and excellent prosecutors. In those cases the jurors probably felt that beyond a reasonable doubt the defendant was guilty (even if the defendant didn’t really do it).
“the jurors probably felt”
You’re as awful as they are.
Oh, and you forgot to tell us that they were just doing their jobs, civil duty, whatever.
No matter that 347 minimum have served hundreds of years total.
Someone has to pay, and anyone is good enough.
I too thought you were a bit hard on the jury.
Just for fun, a couple of quotes:
“A jury verdict is just a guess – a well-intentioned guess, generally, but you simply cannot tell fact from fiction by taking a vote.”
― William Landay, Defending Jacob
I once overheard (but could not contribute to) a conversation of many (8+) lawyers, only one of whom had a background in engineering. The issue was a stock transaction involving a 1:3 ratio. What was the 1? 33%? 25%? The conversation went on for at least two hours (no sh*t). With the engineering lawyer protesting as best he could, an otherwise unanimous vote decided the 1 was 33%. And that’s how it was presented to the client. I enjoyed listening to the guy sputter in protest.
This was a real fact whose truth could be Googled.
The quote I was looking for was something about juries being composed of nobody who has any experience. Instead I found this
When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.
Norm Crosby
With all the errors and malfeasance, I’m not sure there’s anything beyond reasonable doubt anymore. I can’t imagine anyone wanting me on a jury.
Don’t be too hard on the jurors. They are intentionally only ever given half the story. Which half, you ask? Oh, that’s for the judge to decide.
The other thing I wanted to point out was the convenience that comes with the paradigm where verdicts are referred to as “not guilty” vs. “not proven.” Set aside that it moves the defense bar higher than it by de jure is claimed to be, it completely and conveniently shifts blame away from the prosecutors when they lose a case. Ie. the state. Ie. too often a politician bucking for a promotion.
But that’s the thing. Any funny business, incompleteness or other shenanigains on the part of the prosecution or procedure overseen by the judge–or reasonable doubt raised by the defense–and the defendant should walk. Not proved. End of story.
It’s not always funny business or shenanigans. It’s that the jurors are kept completely ignorant of pertinent facts if the judge decides so.
If you did NOT know Trayvon Martin was big into MMA and had made videos on his phone of him and his friends in MMA-style fights, you might think it unlikely that a 17 y.o. kid would instigate an unprovoked fist fight with a random stranger in the suburban equivalent of a dark alley. Ergo, the guy with the gun probably started it. Ergo, the guy with the gun is guilty of manslaughter.
On the other hand, if you DID know Martin was an experienced bare-knuckle street fighter, it would be totally reasonable to believe that Martin might think he could take this short, fat guy in a fist-fight and so instigate an unprovoked attack on him.
In my opinion, that’s a hugely relevant point. In reality the former was true and completely hidden from the jury. There is no possible way the jurors could have inferred it from anything in the actual trial. Whenever they were in the court room that fact simply did not exist. (I watched nearly every minute of that crazy thing for two weeks.)
Obviously Zimmerman was found not guilty, but it was a much closer case than it should have been. Heck, it shouldn’t have even been an indictment, but that’s a whole ‘nuther ball of wax. My point stands, it was made a close trial because the judge saw to it that it was a close trial.
Ha, you say tomato I say tomaato. 🙂
Sounds like funny business and shanigains to me. Of course they call it “not predudicing the jury,” but in what universe are pertinent facts witheld or not considered? See, those facts put the whole thing in a sold his word against mine context.
I.e., refusal to indict or, probable aquittal.
I bogged quite a bit about that case back then. Chris Masterjohn was even emailing me tidbits of insight.
How many consummate weirdos part with 35 million in settlement cases?
Pretty decent point. He parted with one hell of a lot of money in order to get a piddling $400K to pay his (very good) defense lawyers. I thought they were excellent. Maybe only Johnny Cochrane might have done better.
…And by the way, for all you who think I’m being “too hard on the jury,” I ask you: what fucking jury?
I’d call them 4,000 plus puppets for the State, such that the truth, justice, and American narrative train leaves the station on time.
It only takes one single person out of twelve to hang a jury. I wouldn’t give it a second thought unless the prosecution’s case was beyond any doubt whatsoever, especially if a death penalty was in play.
“It only takes one single person out of twelve to hang a jury.”
This always blows my mind. I’d have to be absolutely beat over the head with evidence to even consider putting another human being in a cage. I can’t imagine how 12 people manage to unanimously agree to it all the time.
My kinda man.
Hey, I don’t want predators out there. But dammit, I will not be party to laziness or sloppiness. The exonerations demonstrate how easily a jury can be “bought” with the ideal of “duty.”
Eric, I agree with you, but I think in a majority of the cases the evidence is really strong…I am not talking about every case. There a lot of bad people in this world and while I wish there was a giant magnet that could only catch them we are left with this system….it is not perfect. The WI thing scares the hell out of me, because that is the entire system working against that guy….most of the time people just want to do their job and go home.
Doug, I’m just not sure when “strong” evidence becomes strong enough, given the extreme consequences. I’d guess it won’t be long before DNA evidence exonerates someone we’ve already put to death. Good luck to the prosecutor trying to get a conviction after that gets out.
I agree with you on the death penalty….that is an incredibly high burden of truth of which I don’t think the state should put the burden of death on a jury.
That sentence about living a life without moral justification really resonated with me. While dating lately, I have been asking most of the women I meet about meta-ethics, specifically their standard of value. It is truly shocking to me how few of them have any concept of what that even means let alone how to define it for themselves.
“Satndard of value? Oh, that’s easy. Lo-Fi, hands down. The pics almost always come out better that way.”
“Uh, I was thinkinking something a little more philosophical.”
“Oh, oh, now I get it. This is exactly why I DVR The View everyday. Did you see the one where they laghed about the girl who cut off the guy’s penis? So funny.”
Scottish jurisprudence provides for a jury to pronounce “not proven”, so that “not guilty” is equivalent to “innocent”. English provides on “not guilty” equivalent to US jurisprudence.
While OJ was found not guilty in his criminal trial, he was found liable to pay $20 mill damages for the unlawful deaths of wife & found dead on the entrance to her apartment.
PS of wife & her friend
Yea Leon, I was going to put that in the post but fugured comments would be better, if it came up.
Wanted to keep it strictly in the criminal realm of State as prosecutor.
So indeed, I don’t have a problem with the civil verdict, and of course, the standard is preponderance, and it only takes a majority of jurors either way, so whether I would agree personally or not, that’s over money and easily within the bounds of reasonable agreement and disagreement with well meaning folk.
Crap shoot. Make another million if you have to. Least you still have your freedom to do so.
FYI, Roman jurisprudence only had private prosecution of both civil & criminal matters.
It was the English King, Henry II, who introduced royal, that is, state jurisprudence by appointing peripatetic Royal Justices who accepted pleas from the direct subjects of sub-kings, AKA dukes lo, counts etc.
At present, this remains the case until a referendum mandating a change in the US Constitution is passed.
The Paradise Lost trilogy is also fascinating. there was some evidence in the Avery case that was not allowed in trial or did not make it in the movie, that makes him seem a bit more likely to have done it. As a former defense attorney, I thought Avery’s attorneys were outstanding.
Yea, I’m going to check that out. Mike Eades told me about it in an email the other day.
In terms of evidence that didn’t make it in, realize, defence attorney, that neither did the cross-examination. Cell calls, DNA on a battery cable, etc.
Thing is, with the level of probable doubt that wasn’t even challenged, it’s already game over unleas you can present a video.
Wait until the three paradise lost docs
I’m with you, Richard, on this one. If you’re a prosecutor you don’t want me on your jury. I’m fine with letting 100 guilty free to spare one innocent person.
When my wife and I watch Dateline together, and it comes time for the trial, my wife always says, “he’s guilty”. And I quite often say, “the evidence is weak, I’m not so sure.”
I wonder if female jurors have more of a tendency to convict on the ’emotional evidence’ than on the concrete evidence? Maybe not.
I also believed OJ was probably guilty. But the States case was botched and I can see why he wasn’t convicted.
I am thinking of starting a self regulating body for paleo certification. We would need some independent directors to start this initiative. I like your sense of fairness. Would you be interested in nominating yourself for a directorship?
I know your answer would be ‘no’. But I asked the question to prove a point. Those of us that are the most fair minded more often than avoid passing judgement on others unless it is absolutely, and I mean absolutely, necessary for survival.
Therein lies the problem. Those of us most suited to judge will not!
As a little perspective, I’m originally from SE Wisconsin and was inundated with it for years by a bored local media. The documentary made it’s case but they also glossed over or ignored much of the evidence against him. Locally about 75% of people think he is guilty and the other 25% don’t care at all so there is almost zero support for a re-trial/release, etc locally. Avery was un-likable, had a bad reputation as a trouble maker and a known association with criminal dealings. His family’s salvage yard was known for stealing cars and farm equipment, ripping off customers and unscrupulous behavior in general. His guilt was making the wrong enemies.
…”but they also glossed over or ignored much of the evidence against him.”
Since the documentary didn’t include every piece of evidence, it also didn’t include any defense arguments or cross examination of it.
Moreover, as I’ve already emphasized, the reasonable doubt created by Manitowoc county shenanigans is insurmountable in terms of the [very possibly planted, with both motive and opportunity] evidence.