In a situation like 1, the defendant's lawyers are probably not going to have him testify for just that reason, IM thankfully limited E.
Huh. From the duty to retreat issue, it sounds like he had a self-defense defense, that the duty to retreat might have nullified? I never thought of self-defense as a defense to the kind of crime where there wasn't any actual physical contact.
Yes. The defense argued self-defense, and the prosecution said that he had a duty to retreat because he did not have a right to be at the complainants' house. I thought they established that beyond a reasonable doubt. But at one point he did have a right to be there.
2: You can't imagine someone being threatened by a much larger person responding by pulling out a weapon and telling the other party to stay the fuck away?
3: Did he grab a machete that was already on scene or did he bring it with him?
Did the lawyers poll the jury afterwards and did you get any sense of what they thought about the verdict?
Is the "one witness" rule meant to imply that you would convict based on the testimony of one witness with no other evidence whatsoever, or that you would convict based on the testimony of one witness plus corroborating evidence (even if circumstantial)? Because if it's the former, that is insane.
5: He brought it with him. He went into his truck to get it.
6: Yep, and also the judge. Apparently the witnesses kind of fell apart on the stand and had sounded much more consistent when the prosecution had met with them last week. I personally didn't find the inconsistencies troubling - they fell in the realm of "general impressions of a chaotic scene" - my fellow jurors were deeply troubled.
7: YES!! The former. It is crazy.
8: Without knowing all the details it still sounds like he was mighty lucky getting acquitted.
7: with no other evidence whatsoever given that you found the witness's testimony convincing beyond a reasonable doubt. It's not "could you ever find a single witness's testimony convincing enough to convict?", it's "if you found a single witness's testimony convincing enough to convict, would you convict?". At least as the blog post heebie linked described it. So it's an idiotic question.
12 is right, which is why it struck me as vacuously true. But it sparked lots clarifying during voir dire.
11: incredibly lucky. The facts get even more egregious - the aggression in which he may have been defending himself were rocks being thrown. We were debating which came first - the machete or the rocks. The hypothetical that gave people reasonable doubt was basically that this guy had gotten trapped in his car by 5-7 men with rocks and could not drive off, and so he got back out of his car with the machete. But the conversation was not as strictly logical as I would have liked - jurors had unshakeable gut feelings that we just didn't know what happened. Which is true, but I could not see any scenario that was not guilty.
The defendant drives around with a machete in his truck as a matter of course? I have lived a sheltered life.
Nobody told me I was supposed to get a machete when I moved to this crazy state. I blame Heebie.
Heebie, can you ask Jammies to pick me up a machete on his way home please?
He said he had it for slaughtering hogs, which is plausible. They're an invasive species and the state sometimes runs incentive programs where they pay you for each tail you bring in. But also I think there are plenty of day laborers who keep them on hand.
15: This is Texas! Need a machete sometimes to cut through the tumbleweeds.
16: Pick out one you like on Amazon so we can get free shipping?
14: Juries are such a shit show. It's why the "Such gamesmanship is beneath those..." from the witness link in the OP is so laughable. Motherfucker, you're a criminal defense attorney. Don't pretend for one second that 90 percent of your job isn't gamesmanship designed around preventing the truth from coming out in court and/or minimizing the consequences to your client when it does.
12 -- neb could do well in law school, and, if he were evil, do well as a conservative appellate judge.
I get the logical distinction but what the fuck is supposed to be the point of that question? What information is the asker hoping to learn??
I personally didn't find the inconsistencies troubling - they fell in the realm of "general impressions of a chaotic scene" - my fellow jurors were deeply troubled.
8: Without knowing all the details it still sounds like he was mighty lucky getting acquitted.
Heebie's description of the case sounds surprisingly like my experience on jury duty (described in the archives). I happily voted to acquit at the time; in retrospect I've felt like that was probably a mistake, and that we probably should have voted to convict, but I also feel like either outcome was defensible.
I've heard from lawyers who do ordinary minor felony cases (not me!) that the witnesses falling apart on the stand thing is the biggest problem with prosecutions and happens all the time. Like, guys get up on the stand and just tell a completely different story (not from intimidation, but just because they change the story). It's really hard for prosecutors to prep witnesses sufficiently, putting aside the problems of juries. But let's not feel too bad for prosecutors since they for the most part can do whatever they want through plea bargaining intimidation and pick their own cases and are often wusses about bringing cases they might lose.
22: IANAL, but it seems likely that the question is aimed at identifying unsympathetic jurors using language that would provide an excuse to strike a juror for cause.
"Your honor, the juror said that evidence beyond a reasonable doubt might be insufficient for conviction."
And on further review, the link in the OP actually says that.
What information is the asker hoping to learn??
I think of it as an "educational voir dire" question—designed not so much to weed out jurors but to educate the jury about the law and the fact that, at least in theory, it's possible to convict someone based on the testimony of just one witness.
At this point, jury members have seen crime shows like CSI and they're often expecting all sorts of fancy forensic science testimony. Most cases don't have that stuff, so prosecutors ask the "one-witness" question to dial down expectations for what it takes to convict.
22 -- Because it's disqualifying and shows the juror who answers "no" wouldn't, if you take the question literally, obey the law (i.e., the law permitting people in some circumstances to convict on the basis of the testimony of one witness IF that testimony establishes guilt beyond a reasonable doubt). So it's a legitimate (or more precisely legitimated) way of striking jurors for cause.
And if the potential juror answers "sure, one guy's story is AOK for me to convict on" then the prosecutor knows they've got someone who isn't going to hold them to a super exacting definition of reasonable doubt.
So you can use this question and strike people for cause, and use your without-cause strikes to get people who are obvious hippies, and Bob's your uncle for TEXAS JUSTICE. It's a nice trick and screening mechanism for pro-prosecution jurors. But obviously didn't work in Heebie's case.
Yes to 25. Additionally, sex crime cases very often revolve around testimony without much or any physical evidence. Prosecutors of course are going to look to weed out jurors who might not be inclined to convict solely off of victim testimony.
There's some of 28 going on, too, but I think 29 is more of it. BTW at least in civil cases you can go crazy in vore dyer in Texas in terms of prejudicing the jury, in a way that would be totally not allowed here. Like basically present the themes of your whole case in advance.
I didn't think the story was significantly changed - the complainant was an undocumented worker who spoke through an interpreter. We all adored the interpreter. She was super professional and delivered all these 'fucks' and so on with perfect inflection. Also half the room spoke spanish and the defense would NOT stop responding to the witness before the interpreter had finished saying it in English.
The (civil) trial I was a jury member for totally fell apart because the witnesses for the person bringing the suit (among whom she herself numbered) were just total wrecks on the stand.
It's a nice trick and screening mechanism for pro-prosecution jurors.
I think it just screens for quiet people who don't like drawing attention to themselves in a big room of strangers.
Because it's disqualifying and shows the juror who answers "no" wouldn't, if you take the question literally, obey the law (i.e., the law permitting people in some circumstances to convict on the basis of the testimony of one witness IF that testimony establishes guilt beyond a reasonable doubt)
Given the fact that the question is kind of confusing and I am not at all certain that a "no" answer from the average potential juror doesn't actually mean "I don't think the situation described in the antecedent could actually obtain", that is, given that the question only performs the function you described if the person answering it also takes it literally, something I see no reason to have a lot of confidence about, I am skeptical of the actual utility of the question.
As in, the prosecutor told us later what detail the witness had omitted that he'd been hoping to elicit. It would have been a nice detail to have - that the witness had escorted the defendant to his truck in order to ensure that he got off the property - but IMO the omission did not discredit the witness.
Did they tell the spanish speaking members of the jury that they were required to ignore the actual testimony and only consider the interpreted testimony? That happened in the jury that I was on, and I thought it was super weird.
Well, right. But you're going to have to put aside that attitude if you're going to be a conservative appellate justice. Read literally, the question is fine, what's your problem?
37: Yes, they were super clear and explicit on that point. That only what goes down on the official transcript counts.
Can't I be a liberal appellate justice instead?
37/39 seems very bizarre (and totally unworkable).
4: I didn't mean to say I was opposed to it, it just literally never occurred to me.
41: Keep in mind that until very recently the only recording of court proceedings was a woman with large hair furiously typing out everything that was said.
Also the judge said that if we had found him guilty, the judge expected to see a later appeal of incompetent counsel. I don't remember the technical phrase the judge used, but he didn't think the defense did a good job. Which made me feel better about the acquittal.
He mentioned a few (major?) things that the defense missed, like asking for a recommended verdict and not objecting to something about the charges and other things I couldn't follow.
"Ineffective assistance of counsel." Which is a pretty goddamn strong thing for a trial judge to say, so the defense must have truly sucked it somehow. And also a pretty hopeless claim in TX, but whatever.
I love that constitutionally, showing that your lawyer was asleep during part of the trial isn't enough to establish that they were ineffective. You have to show specifically that they were asleep for the important parts.
Also I was SO RELIEVED to find out afterwards that it was a different machete guy. When the prosecution said that it was a machete in the fall of 2014, I nearly jumped out of my skin, and gave myself a very strict speech about not thinking this guy was the same guy. Because I did wonder if we were acquitting a guy who'd been whipping his machete out all over town during that 1-2 month stretch.
"Love" is used loosely in the above comment.
You have to show specifically that they were asleep for the important parts.
This makes sense to me. Otherwise, good lawyers would make sure to take a brief nap during some lame part of the proceeding, just to ensure their client could later make the ineffective council case on appeal.
I don't think many good lawyers try to set their clients up with appeal rights based on ineffective assistance of counsel.
Yes, although it can produce odd results when a defendant with good lawyers gets railroaded. I dunno who's seen making of a murderer, but assuming that the documentary's perspective is roughly accurate (it may well not be) you had one guy with absolutely excellent lawyers who was wrongfully convicted and has essentially no hope of post-trial relief, and another guy who was wrongfully convicted with comically horrible counsel who has a much better (though still, to date, unsuccessful) claim for appellate relief.
I mourn the loss of my comments on the thread you started and removed the first time around on the one witness thing.
Even though my comments contributed nothing.
You said:
TRIAL LIVEBLOG (2x)
TWO LIVEBLOGS EACH MORE REVEALING THAN THE LAST
and
Possibly relevant: http://mobile.nytimes.com/2016/02/04/us/record-number-of-false-convictions-overturned-in-2015.html
41, 43: is it really a thing, or just a tv/movie thing, that jurors are instructed to disregard things they heard or saw? This always seemed like the most bizarre instruction, on both psychological and epistemic grounds.
55: Thanks. I forgot that article on exonerations mentions a one witness case.
And actually, in deliberations, people acknowledged that we couldn't use some things. Nothing was decisive, but for example, one person was saying that the bar down the street in the incident was notoriously bad and has had lots of violence, and someone else said, "We can't use that, that's outside facts" and it was dropped and not brought up again. The jurors did confirm that the interpreter had done a good job, though.
In Scots law you can't convict on the word of one witness alone - you need something else as well. Obviously a problem for sexual assault cases.
Am sure I remember reading that some of the attraction of juries originally - i.e in the late middle ages - was that they would have local/outside knowledge.
Is NZ law based on Scots law or is there some other reason why you know so much about it?
Does any country still use two witnesses or a confession as the standard?
60 -- well, the original juries were basically just an organized group of local men who the king's officer called in to let him know what crimes were going on in hte neighborhood. Then, when the Church decided that trial by ordeal as a means of testing truth wasn't super awesome in 1215, the English (unlike the rest of Europe) just decided to use a smaller version of the groups of locals they already had to ascertain truth, so you had an evidentiary jury. They were still free to use outside knowledge until IIRC quite late, but I'm pretty sure that by the 18th C you had a system where the jury was supposed to decide exclusively on evidence presented in court and nothing else.
61 - I was born in Scotland, and during my not-very-succesful attempt at law at uni the Crimes lecturer was South African so would sometimes discuss civil law, and at one point then I read a couple of books on Scots criminal law (plus Scottish detective fiction in which the author shows off their research.)
NZ criminal law is bog standard commonwealth codification-of-the-common-law stuff, no Scots influence at all really.
63. That's right. It's baked in. It's forgotten all about that.
Has that clause ever actually been invoked? I feel like I must have known this at some point but if so I've forgotten.
It's only for the specific crime of treason as defined in the comstitution, which some but very few people have been convicted of. Aaron Burr had a treason case the details of which I forget, but he was acquitted because of a narrow definition of the crime. Can't remember if the two witness thing came up there. Tokyo Rose, and I remember talk that they were charging John Walker Lindh with treason but I can't remember what happened there.
The treason corroboration rule was at common law before the constitution -- this used to show up in the State Trials, I remember that much.
64: originally they were an investigative/advisory body, as you say, also arbitrating on land disputes; on criminal cases they investigated and presented a case to the judge who made the final decision. Later on (post 1300) you got a two-jury system - one investigative, one trial. By the 17th century they had lost their investigative powers and were purely trial juries.
Yeah - the investigative jury is the infamous grand jury. I have this vague belief from legal history in first year that novel disseisin etc were heard by juries who - obviously - used local knowledge.
Quite why first year law students needed to learn about the writ of novel disseisin is beyond me, but.
And actually, in deliberations, people acknowledged that we couldn't use some things. Nothing was decisive, but for example, one person was saying that the bar down the street in the incident was notoriously bad and has had lots of violence, and someone else said, "We can't use that, that's outside facts" and it was dropped and not brought up again.
Good for them! It sounds like a pretty good group.
Keep in mind that until very recently the only recording of court proceedings was a woman with large hair furiously typing out everything that was said.
Is that so? My late MiL, who was admittedly recording for courts martial in the USAF rather than civilian courts, used to take records in Gregg shorthand, which was much quicker and more efficient; she typed it up at her leisure in the evenings.
"Typing" as done by court reporters, is done on a special machine that's faster than a regular keyboard -- maybe 10? keys? and they make symbols by hitting chords. It's very skilled, and I'm sure equivalent or superior to written shorthand.
On the whole, it was a good group - strictly civil, thoughtful discussion. Also it was 11 women and 1 man, fwiw. (Also I was foreperson.) There were two people, ime, who had their mind made up upon walking into deliberations and were not at any point open to other points of view, but since they were both arguing not guilty, they had the ultimate upper hand on their side.
74 IPMHB a story I was told about Wilson having newly elected members of Congress over to the White House in 1913. Wilson noticed a rep from Kentucky writing in court-reporters shorthand -- which Wilson recognized having been a court reporter long past -- and summoned him for a private discussion. And ended up forming a bond that helped young Rep Barkley move leftward.
(Barkley's grandson told me the story.)
Is Sanders the truer heir of Alben Barkley? Yes he is.
Charley I missed your gloating presence on the New Hampshire thread when Cliven Bundy was arrested the other day. IANAL, was that indeed the book thrown?
who was admittedly recording for courts martial in the USAF rather than civilian courts
I think if you're going to say "courts martial" you should also say "courts civilian".
I haven't looked at the indictment, but my sense is that this is plenty serious. I guess I could grab it off pacer . . .
From the docket sheet:
Count 1 - 18:371 - Conspiracy to Commit An Offense Against the United States; Count 2 - 18:111(a)(1) and (b), 1114, and 2 - Assault on a Federal Officer By Use of Deadly and Dangerous Weapon & Aiding and Abetting; Count 3 - 18:924(c)(1)(A)(ii) and 2 - Use and Carry of a Firearm in Relation to a Crime of Violence & Aiding and Abetting; Count 4 - 18:1951(a) and 2 - Interference with Commerce by Extortion & Aiding and Abetting; Count 5 - 18:924(c)(1)(A)(ii) and 2 - Use and Carry of a Firearm in Relation to a Crime of Violence & Aiding and Abetting; Count 6 - 18:1503 and 2 - Obstruction of the Administration of Justice & Aiding and Abetting
No Seditious Conspiracy, but still, looks plenty serious.
I downloaded it Barry, so if you want a copy, send me an email.
That assault charge looks a lot like a "going to die in jail" type charge to someone who doesn't know too much about the law (me), which wouldn't be a bad result.
82 I don't think I have your email, Charley. Mine's at the link(just replace the word underscore with an actual underscore: _ ) Thanks.