Friday, July 8, 2011

Justice and Law

Several years ago I spent a bit more than a week trying a case in Judge Coyle's courtroom out in bucolic Belvidere New Jersey, which is the county seat of Warren County (but you already knew that).  The plaintiff's principal allegation was that due to my client's negligent operation of his car (he hit her head-on after he entered her lane of travel in response to trying to avoid something he thought he saw trying to run into his lane from an adjacent cornfield) she had sustained permanent psychiatric and psychological injuries.  One of her experts (I forget now which one) diagnosed her with PTSD due to the impact. 

Anyway, the plaintiff made a terrible witness.  Her husband was even worse.  I was quite confident - based upon my cross-examination of both of them - that I had made that point with crystal clarity to the jury of eight men and women.  I was especially confident that I had made my case to Juror #2, a bespectacled man who spent a lot of time seemingly nodding his head in agreement any time the defense made a good point.  He was so expressive that upon the jury's retiring to deliberate my client - who attended every day of the trial - leaned over to me and told me that while he did not know what was going to happen, he was sure that Juror #2 was on our side. 

Fast forward ahead two hours.  Having completed their deliberations, the jurors returned to the courtroom to publish their verdict.  On the question of whether the plaintiff had proven by a preponderance of the credible evidence (a standard employed in civil cases that is significantly less difficult to satisfy than its criminal counterpart of proof beyond a reasonable doubt) that she had sustained permanent psychiatric and psychological injuries including but not limited to PTSD, the jury voted that she had not.  They voted that she had failed to meet her burden of proof.  The vote was 7-1.  The lone dissenter?  Juror #2.  As the jurors filed out of the courtroom - past the incredibly upset plaintiff, her husband and their attorney - my old pal Juror #2 smiled and nodded at my client and me.  To this day, I know not what the significance of that gesture was meant to be.  Never will.

My point is merely this.  Unless and until you spend every moment of every day that a case is being tried in the courtroom - immersed in what is going on and taking the temperature of the room as it were - you cannot know what part or parts of the parties' cases have been well-received by the jury and what parts of the case have not.  Hell, as my personal example illustrates even when you are in the courtroom every day immersed in every moment of the trial you can still misread the signals coming from the jury box. 

We the people of these United States have become fascinated by reality TV.  Every station on the dial has at least one such program.  Oh how I long for the day when they start morphing two or three or four of them together into one, which will serve to both raise the stakes for the competitors and winnow down the field of available drivel for the viewers.  Some day perhaps.  Ever since the glorious summer of 1994, when my beloved New York Rangers won the Stanley Cup, Dave, Diego and I turned the week of the Bar Exam into a mini-vacation in Philly and Orenthal James Simpson went for a ride in his SUV with his friend AC, among our favorite type of reality show is the televised criminal trial.  Televised criminal trials apparently get good ratings and the broadcasting of them has created a cottage industry for legal talking heads to ply their wares.  Could you imagine a world without Nancy Grace?  (Sigh.....)  

Opinions are like....well, you know what opinions are like so I need not write it here.  Every one is entitled to one.  At day's end however that is all that they are.  No amount of legal prognostication offered by lawyers who - just like Yours truly - neither tried nor knew in detail the pluses and minuses of all of the evidence to be offered by both sides in the recently concluded trial of Casey Anthony in Florida, converted their best guesses, their opinions into facts.  Regardless of what you the viewer might have thought and especially regardless of what they the gasbags might have told you.  I suppose that I am in the minority among my profession in that I do not claim to know that the jury "got it wrong" or "f*cked up".  Having not spent a single day - let alone all 33 days - in the courtroom listening to the testimony, evaluating the evidence and - more importantly - studying the reaction of the jurors to the evidence presented, I cannot pretend to know the answer to that question. 

The result is upsetting to most folks.  No argument here on that point either.  What I fear however gets lost in the noise are a couple of things.  First, the State's burden in a criminal prosecution is to prove the guilt of a defendant beyond a reasonable doubt.  In the Anthony case, the State was hamstrung by the fact that the coroner was not able to determine what the cause of that darling little girl's death was.  In hindsight, might the State have considered charging 2nd degree murder and/or taking the death penalty off of the table in light of that difficulty?  Perhaps.  But they did not.  Casey Anthony was charged with first degree murder in a capital case.  If the jurors - after considering all of the evidence that was presented to them - were not persuaded beyond a reasonable doubt that the State had met its burden, then they fulfilled the terms of their oath. 

Second, a finding of "not guilty" means simply that:  the jury did not find that the State had proven the defendant's guilt.  No one declared Ms. Anthony "innocent".  Jeopardy has attached.  She cannot be retried for her infant daughter's death.  To you perhaps it is a distinction without a difference - "not guilty" versus "innocent".  I assure you that it is not.  Our system of criminal justice does not place the burden on a defendant to prove his/her innocence.  Rather it places the burden on the State to prove his/her guilt.  And as Lt. Kaffee reminded us all, "It doesn't matter what I believe. It only matters what I can prove! So please, don't tell me what I know, or don't know; I know the LAW."

Dissatisfaction with a specific result is not a reason to dismantle the system.  It is nothing close to flawless but it is the best system of criminal justice currently in place anywhere on the planet.  The system is not broken - regardless of what a certain bubble-headed bleach blonde might otherwise be shrieking from the clock tower.

And if one believes in such things as karma and a greater system of celestial justice, then perhaps one takes solace in the fact that if Ms. Anthony did in fact murder her little girl, then may she be sentenced to a lifetime of having that child's face be the last thing she sees when she closes her eyes at night, every night for the rest of her life.  And it that is not enough for you and/or you disagree with what is written here, that is more than fine.  It is how it should be.  My opinion is merely that:  my opinion.  You have a brain.  Do not be shy about using it to process information and to reach your own conclusions. 

Thinking after all is nothing but a deliberative process; right?


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