makes mention that former Harris County D.A. John Holmes composed an e-mail regarding his thoughts on the verdict.
Anyone know where to find said e-mail?
As for the issue of the moment, I still respect the jury system, right up-to-the-point that they disagree with me.
The real question now for those of us firmly rooted in the profession and practice of criminal prosecution should not be "What went wrong?", but rather what was it about these jurors, these twelve good souls - at least they showed up, unlike the 60% (or more) of summoned jurors that don't report here in Dallas County - that we could have identified in voir dire that would have clued us in to the fact that they were either a) going to view the State's circumstantial case as suspect or b) the way that they mentally processed the evidence was going to lead them to believe the defense's argument.
I don't pretend to know the answer. I just believe that that needs to be the question.
Without commenting on the verdict of the Galveston jury, I do think we do need to pay more attention to the attitudes of jurors. Jurors are now inundated with media opinions on criminal justice. Most TV crime shows take the more dramatic point of view that innocent people are being convicted. That makes it less likely that a jury will draw reasonable inferences from obvious evidence of guilt.
Basically, I remain confused. Did the defendant argue he did not voluntarily engage in the conduct that caused death, or did he argue he intended to use such force as was necessary (according to his reasonable belief) to protect himself against Black's alleged use of unlawful deadly force? If the latter, which is what appears to be accurate, then the real problem may lie in sec. 2.03(d), P.C. which allows the defendant to ask for an acquittal so long as his testimony could be viewed merely as raising a reasonable doubt. It is pretty hard (likely impossible) to prove what the victim was doing immediately before the shooting under circumstances such as involved in Durst. Maybe a different burden of persuasion should be placed on the defense to prove Black's conduct where there are no witnesses remaining other than the defendant. Not that I think any different instruction on this issue would have affected the outcome with the particular set of jurors involved in Durst. One thing, for sure, it makes no difference how scared you might be about the police or prosecutor believing your explanation, what counts is how well a jury will believe it (even if your subsequent conduct says they probably shouldn't).
Just goes to show you that these days the only sure thing is that there is no sure thing. I have noticed in the last few years with my juries that there always seem to be one or two jurors who are willing to buy any silly theory thrown out by the defense. So far the reasonable jurors have overcome the nuts in my cases but you know that some day it's going to happen. I don't profess to be smart enough to understand why attitudes are changing but I think it has something to do with the overwhelming amount of media jurors see about "innocent" people being convicted, prosecutor misconduct and so on. We don't start out wearing the white hats anymore with a lot of folks. Martin, I don't know how it would be perceived when prosecutors try to change the law over what we believe is a bad result. The law of self-defense has been there all along. It's just a fact of life that the system is going to go haywire every now and then but works most of the time (which is pretty much what I think Mr. Holmes said in his email, according to the news reports I read). This is in no way a criticism of the DA who tried Durst, but I don't see this outcome as completely ignoring reality and the facts. After all, the prosecution labored under the handicap in this case of having only one eyewitness left as to the fact of what happened. Now, O.J. Simpson ... that's a different matter. Durst is just one we don't agree with; Simpson was a complete jury nullification. That's my take.
Posts: 283 | Location: Montague, Texas, USA | Registered: January 26, 2001
We recently finished work on a case in which the defendant claimed his wife shot herself in the back. Problem with that defense was that wife was about 350 pounds and the wound was caused by a shotgun.
Turns out the defendant shot his wife in the back and forced her to put her fingerprint on the trigger before calling 911. Given the physical difficulties of this defense, he eventually pled guilty.
Good thing, because he also had threatened to shoot the family cat. The jury really would have been mad about that.
I read an interesting article in the new Texas Lawyer about the Durst case. According to it, the defense attorneys used shadow juries to determine what the best approach was and what type of jurors to choose. Apparently they wanted mainly women. According to several of the jurors, they didn't find Durst a credible witness, but felt that the State didn't provide enough evidence to prove that Durst deliberately killed the victim under the BRD standard. Reputedly, the lack of the victim's head was a real drawback for the state. Also the victim's reputation for crazy, aggressive behavior as presented by the defense. I'm not sure this case falls in the same class as the OJ case as far as the jury's basis for their verdict.
Posts: 674 | Location: Austin, Texas, United States | Registered: March 28, 2001
I've got a local defendant who was caught with his dead wife in the trunk of her car. He now claims he killed her in self-defense and then panicked. I think he got the idea from watching the coverage of the Durst case while in the holdover cell. Who says criminal don't keep up with current events?
Travis County is in the middle of a trial that has raised the discipline defense. Victim was beaten with a stick for allegedly lying; defendants allege the parents gave them permission to discipline. The defense is trying to make this a religious defense.
I prosecuted a pro se meth cook who was smart enough to take the stand in his own defense. He testified that everything he bought was legal and it could not, therefore, be illegal to combine them. I asked him what he was trying to make and he replied he was trying to make a powder that would make him feel good. I asked him what he called this magical feel good powder and he said he hadn't named it. When I asked him if we could name it methamphetamine he replied that he didn't think he'd do that.