Tonight on Reasonable Doubt

Tonight I will be a guest on HCCLA's public access show Reasonable Doubt along with Sarah Wood at 8pm on Houston Media Source TV. If you don't get that channel on your cable package (or if you've cut the cable), you can catch the live stream at hmstv.org.

Reasonable Doubt is co-hosted by Jimmy Ardoin and Damon Parrish II. Topics tonight will include the death of Sandra Bland, how to handle a police encounter and why black lives matter.

Reasonable doubt?

Harris County (Texas) Commissioner Jerry Eversole (we might need to start calling him Teflon) walked out of the federal courthouse in Houston, Texas on Wednesday after a judge declared a hung jury.

Mr. Eversole was charged with accepting a bribe, conspiracy and filing false tax returns.

The feds alleged that Mr. Eversole had accepted bribes from real estate developer and personal friend Michael Surface. Mr. Eversole argued that any gifts that exchanged hands had nothing to do with county business and were private transactions between he and Mr. Surface.

After four days of deliberations, the jurors (once again) informed US District Court Judge David Hittner that they were deadlocked and that there were no expectations that they could come to a unanimous verdict. After receiving the note, Judge Hittner informed the jurors that if they could not reach a unanimous verdict another jury would have to be picked and all of the evidence would have to be presented again.

In other words, he asked the jurors to do their civil duty and save the feds some money.

His exhortation was to no avail as the jurors came back after some more deliberations without a unanimous verdict on any of the counts.

As to be expected, US Attorney John Pearson announced that los federales were prepared to tee it up again in their quest to convict Mr. Eversole.

In recent weeks both Scott Greenfield and Gideon have written about what beyond a reasonable doubt actually means. The jurors in Mr. Eversole's case heard the evidence. They went back in their little room, sat around a conference table and argued for some 18 hours about whether los federales had proven each and every element of their case beyond all reasonable doubt.

They were even castigated by a judge (and, in essence, were told they were wasting taxpayers' money if they couldn't come to a unanimous verdict) and went back and argued some more. Still they couldn't reach a unanimous decision on any of the four charges.

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn't prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn't prove beyond all reasonable doubt?

Reasonable Doubt, 2/17/2011

Tonight I'll be a guest on Reasonable Doubt on public access television (Houston Media Source) in Houston. The show is sponsored by the Harris County Criminal Lawyers Association and is hosted by Todd Dupont. We'll be talking about police brutality and the town hall meeting on police brutality held earlier this week.

Reasonable Doubt is on Channel 17 on Comcast in Houston. The show airs at 8pm. You can stream the show at http://hmstv.org/streaming.htm.

What is reasonable doubt?

Why is it necessary for a jury to be unanimous in order for a defendant to be acquitted?

If "we are asking jurors to decide a person's fate based on imperfect information," then should every criminal defendant be acquitted on grounds that imperfect information necessarily generates a reasonable doubt? -- Comment from Randy, Does social media threaten the jury system?

Isn't the very fact that six, or twelve, jurors can't come to an agreement that a person is guilty evidence of reasonable doubt? After all, the burden of proof in a criminal case is on the state, not the defendant. If the state can't convince a panel of citizens in the courtroom that the defendant did something bad, why should the defendant have to go through the time and expense of another trial?

Scott Greenfield at Simple Justice touched on this topic back in September:

In Oregon (anywhere else?), a verdict of 9 for conviction is apparently sufficient to convict, whereas it's a hung jury elsewhere.  Not having tried a case in Oregon, this came as news to me.  Shocking news.  Of a twelve person jury, the fact that one of four jurors found that the evidence failed to prove guilt beyond a reasonable doubt means nothing.  Close enough for government work.  And a conviction.  Next case. 

* In the State of Oregon it takes 10 jurors to convict of any crime short of murder; it takes 11 to convict for murder. A comment to the post pointed out that Johnson v. Louisiana spoke to 9-3 verdicts.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

In Johnson v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment did not require unanimous jury verdicts in state criminal trials. The Court found that it was perfectly logical for a man to be convicted of a crime if 75% of the jurors thought he was guilty. The very notion is absurd on its face.

How many of us would trust a doctor if he were only 75% certain of his diagnosis? But that's enough certainty in Louisiana to lock someone up in the penitentiary in Angola.

But back to the original question -- what interest is served by ordering a mistrial whenever the jury is hung? We are all considered innocent unless, and until, proven otherwise beyond a reasonable doubt. If the jury cannot all agree that the defendant is guilty as charged, then the state has failed to prove its case beyond all reasonable doubt. That logically means the defendant is not guilty and should be allowed to go about his or her business. Why should the state get another bite at the apple?

Of course logic and law don't always go together.

Attempting to define the undefineable

What does beyond all reasonable doubt mean to you?

In 1850, the Massachusetts Supreme Court, Commonwealth v. Webster, said reasonable doubt was a mental state in which a jurors "cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

In Cage v. Louisiana, 498 US 39 (1990), the US Supreme Court said what it wasn't. In that case, the high court rejected Louisiana's definition of reasonable doubt as "such doubt that would give rise to a grave uncertainty... A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain."

In Victor v. Nebraska, 511 US 1 (1994), Justice Ruth Bader Ginsberg defined proof beyond a reasonable doubt as "proof that leaves you firmly convinced of the defendant's guilt."

In Sandoval v. California, the US Supreme Court upheld the following definition of reasonable doubt:

"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence,leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

The term is not defined as part of the jury charge in Texas courts. Some folks have described beyond a reasonable doubt as that degree of certainty upon which you make your most important decisions.

In 48 states, a jury must return a unanimous verdict in order to convict a citizen of committing a criminal offense. While the requirement of unanimity is not required under the Constitution, it is a pretty good indicator that the state has proven its case beyond a reasonable doubt.

Louisiana and Oregon are the only two states that allow for a conviction upon a jury vote of 10-2 in a felony case. The equates to 5/6 of the panel - that leaves an awful lot of room for doubt, wouldn't you say?