Call It The Tumbling Dice

Next time I have a criminal jury trial, one of my voir dire questions will be whether prospective jurors watch Nancy Grace.* That is one of the great things about the jury system–that both the prosecution and defense choose the fact-finders of their case.

*What’s with her label “Tot Mom”? Isn’t every woman who has a young child a “tot mom”? Nancy Grace sucks.

As fast as the not guilty verdicts could be tweeted there were clamors that the jury in the Casey Anthony trial were wrong. After thirty days of evidence and a day and a half of deliberations, the jury voted to acquit. For many it was a surprising result. To Nancy Grace, much of the media and the people that heard the evidence through them, the State of Florida proved beyond a reasonable doubt that Casey Anthony murdered her daughter. To the twelve jurors who decided this case–whose opinion was the only one that mattered–who were chosen by the State and the defense–who actually heard and saw all the evidence live in the courtroom–the State did not meet its burden.

From time to time you’ll hear lawyers on both sides of the aisle say that taking a case to a jury is akin to rolling the dice. I don’t like that expression because it undermines the concepts of fact-finding, advocacy and the law. There is risk for both sides in going to trial because, unlike a plea bargain, the outcome is not known in advance. Few if any cases are slam dunks.

As I did not watch the trial from the jury box nor discuss the evidence in the jury room, I don’t know what swung the case. What I do know is that the decision to convict or acquit was made by twelve people and that it had to be unanimous. Like everything, juries and jurors are imperfect. Still, the chances of having twelve terrible jurors is quite remote. One or two may slip in with a bias that cannot be detected in voir dire, but with both sides able to exercise challenges, and those sides composed of high-powered and experienced prosecutors and defenders in such a high-stakes case, the jury should not be as a whole biased one way or the other. Additionally, the chances of a jury having a Henry Fonda holdout persuade his eleven angry peers to switch to his position is slim as well.

The purpose of a trial is to determine whether a person accused of a crime committed it. To protect citizens from the power of the government, defendants are presumed innocent and must be proven guilty beyond a reasonable doubt. The burden is on the government. The facts and doubts are assessed by an impartial jury of citizens, not government employees or any other group (such as the media) which may come to the proceedings with an interest. The people in the media and the outlets themselves are not free of interests. The system has a plan for that as well: jurors are not supposed to read about the cases they are to decide. Again, while jurors may have biases that are not readily apparent, juries as a whole are still not nearly as flawed as those who are trying to sell advertising time or newspapers.

Interestingly enough, one of the biggest threats to jury reliability was present in the Anthony case and was put there by the law. Casey Anthony was charged with capital crimes and faced the death penalty if convicted. Death cases have two phases: guilt and penalty. After a person is convicted of a capital offense in the guilt phase, the same jury decides in the penalty phase whether the death penalty should be imposed. The wrinkle is that death penalty juries are composed of jurors who say that they can vote for execution. People who say in voir dire that they cannot vote death (for any reason) are dismissed for cause. The resulting juries therefore are called “death-qualified.” Studies have shown that supporters of the death penalty–a more conservative group–are more inclined to believe prosecutors and law enforcement personnel than defendants and their lawyers. When the prosecutors stepped up to the table, they were rolling loaded dice. Yet they still didn’t make their point.

It wasn’t the jury. It was the evidence. It almost always is.

“This low down bitchin’ got my poor feet a itchin’ / You know you know the duece is still wild”

Chris DeMatteo is an attorney and the sole member of DeMatteo Legal Solutions at 2911 Dixwell Ave., Ste. B10, Hamden, CT. Call (203) 691-6594 or visit the office website. Attorney DeMatteo represents clients in criminal, juvenile and civil matters in all of Connecticut's courts.

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