Wednesday, July 06, 2011

Interesting Tilts Of Marcia Clark And Alan Dershowitz Toward Educated, Informed Italian-type Juries

Posted by Peter Quennell

Neither of these heavy hitters are saying to abolish the common-law system of not placing professionals in the jury room.

Or for that matter to swing over to a semi-professional and seemingly less error-prone system like Italy’s, where the judges stake their own reputations on their verdict and the written explanation that must follow.

But both found the Casey Anthony non-guilty jury verdict a bit peculiar, and Alan Dershowitz specifically suggests that semi-professional jury systems (like Italy’s) tend to be more accurate. 

Above, the former prosecutor Marcia Clark commenting a couple of weeks ago on why the media boosted the Casey Anthony trial into such a “fry her” phenomenon. And here in the Daily Beast she comments on why that media angle had no sway over the jury.

For one thing the evidence and scenario had some major gaps. And for another:

[American] jury instructions are so numerous and complex, it’s a wonder jurors ever wade through them. And so it should come as no surprise that they can sometimes get stuck along the way. The instruction on circumstantial evidence is confusing even to lawyers. And reasonable doubt? That’s the hardest, most elusive one of all. And I think it’s where even the most fair-minded jurors can get derailed.

How? By confusing reasonable doubt with a reason to doubt. Some believe that thinking was in play in the Simpson case. After the verdict was read in the Simpson case, as the jury was leaving, one of them, I was later told, said: “We think he probably did it. We just didn’t think they proved it beyond a reasonable doubt.” In every case, a defense attorney will do his or her best to give the jury a reason to doubt.

“Some other dude did it,” or “some other dude threatened him.” But those reasons don’t necessarily equate with a reasonable doubt. A reason does not equal reasonable. Sometimes, that distinction can get lost.

Former Harvard Law professor Alan Dershowitz went deeper into jury principles on the Piers Morgan interview show on CNN last night.

DERSHOWITZ: Well, if you want justice, don’t look to the criminal law system. That’s not its job. Its job is not to produce a just result. Its job is to produce a legally correct result.

We have a system that says better 10 guilty go free than one innocent be wrongly confined. If you have a 60 percent likelihood a person did it, you must acquit. If you think he probably did it, you must acquit. If you think he almost surely did it, you must acquit.

We acquit lots of guilty people, and that’s the right thing to do. When we convict an innocent person, that’s the wrong thing to do. That’s our system of justice. Many people don’t like it. Many people think the opposite, that we have too much popular justice, too much dependent on elected prosecutors, elected judges, elected officials.

The French, for example, don’t understand our stem with a case that’s going on now with the rape in New York. They don’t understand our system. They say it’s much too popular. In France, there’s a professional system. They have professional judges, professional prosecutors, professional jurors.

We’ve opted for a much more democratic system, and it means that in the end you’re going to be dissatisfied with a lot of verdicts. Just don’t expect too much from our legal system. Don’t expect truth. Don’t expect justice, because that’s not what it’s supposed to give you.

It’s supposed to give you a legal process that only convicts if admissible evidence proves the case beyond a reasonable doubt. If you don’t like that system, I’ve got plenty of other systems for you that are more accurate. The Chinese system, the military justice system, the Russian system. Many European systems. But the American system errs on the side of freeing the guilty instead of convicting the innocent.

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Pete - Marvellous quote from Maria Clark:  “...even the most fair-minded jurors can get derailed. 

How? By confusing Reasonable Doubt with a Reason To Doubt.” [my caps]

I do not expect the AK/RS Juries to fall for this obfuscation, promoted by the FAO’s isolations of the pieces of evidence, giving a reason to doubt each one separately, and not considering the evidence as an integrated whole

Posted by Cardiol MD on 07/06/11 at 08:14 PM | #

Hi Cardiol. Marcia Clark is going to spend the rest of her life calibrating her take on juries. She resigned after the OJ Simpson trial and has been essentially a legal entertainer ever since.

I guess now in light of the above there will be a huge inflation of online comments in Italy!!

“Don’t take your vacation in the US - very third-world - I was about to take my family there, but those elected judges and prosecutors, and those juries that get lost in the instructions and just flip a coin…”

Good grief. Sometimes the whole world seems stuck in reverse.

Posted by Peter Quennell on 07/06/11 at 09:10 PM | #

Alan Dershowitz: “We acquit lots of guilty people, and that’s the right thing to do.”

It is?!! I was with him except for that.

The NY Daily News reports that US homicide “clearance rate” meaning mostly convictions has dropped from 90% to 65% in just over a decade.

That means that an awful lot of murderers are out there and still wandering around free.

Part of the reason is police budget cuts. Another, it seems, is TV:

“Prosecutors have been complaining that shows like CSI are creating the expectation that every trial must feature high-tech forensic tests. They fear that when they don’t show off CSI-style technology, juries might let criminals get away with murder.”

Posted by Peter Quennell on 07/06/11 at 09:51 PM | #

I think the media coverage of cases like this is often more helpful to the defendant than damaging. If I was sitting on a jury and hearing the evidence in court, I would be rather offended that talking heads and headline-writers claimed to know more than I did. I would be equally offended that commentators acted as if they knew more than I did. A jury is in a hugely powerful position, and they know it. If anyone tries to usurp that power, the natural instinct is to rebel against it.

Vincent Bugliosi, prosecutor in the Manson Family case, writes of an incident during the Manson trial when President Nixon gave a press conference stating that Manson was guilty. Manson managed to draw this to the attention of the jury, despite them being sequestered and the trial was halted so the jury could be questioned. Many of them expressed irritation that a public figure was speaking publicly about the case when he was not in court and not hearing the evidence, unlike them. Each of them swore to judge the case on the evidence they heard.

It’s an understandable reaction, and it helps to give the lie to the Knoxophile claim that the Italian jury were combing British tabloids, to tell them what to think. Utter nonsense.

Also, as someone pointed out in an article on the Anthony case, TV crime shows give the impression that with every single murder, there is an irrefutable smoking gun, rather than (as is the case with many accused murderers, including Amanda Knox), a series of alleged “coincidences”, all pointing at a certain individual or individuals, which defy compatability with innocence, whichever way you look at it.

Posted by Janus on 07/07/11 at 01:22 AM | #

Just a comment. Hope it is appropriate.

There are some highly complex cases in the United States, almost all in Federal Court, where jurors are screened for qualification; but these are an extreme rarity, and compromise a miniscule fraction of common practice. Such juries are advisory to the Court (they do not actually render a verdict) re: extremely technical concepts of technology or finance.

In the ancient history of the law, jurors either were professional (unfortunately this probably included “professional"in the same sense it is used regarding a prostitute), or were required to be vetted, in terms of property ownership.

In the case of Meredith’s killers, I believe that the critical distinction is that a panel of professionals should be able to grasp the multiple inconsistencies in, and transparency of the killers’ stories; and appreciate that important inferences may be drawn from circumstantial evidence.

It is quite apparent that the Anthony jury was either incapable or unwilling to do this.

Posted by Ballard Guy on 07/07/11 at 03:36 AM | #

Thanks for the Marcia Clark article,Peter. Interesting to see how, sixteen years after OJ, she still hasn’t learned a thing. The jury is STILL at fault. “The biggest jury failure since OJ”?

The Jury MUST infer everything that is apparent to the prosecution? Yet, concerning OJ the jury poll said “We think he probably did it. We just didn’t think they proved it beyond a reasonable doubt.” So why shouldn’t prosecutorial hubris get its comeuppance, once again? I am not being argumentative with you. I think Casey Anthony may have chloroformed her daughter and kept her in the car trunk so she wasn’t seen while partying. The duct tape, so she wouldn’t make a sound. Caylee Anthony might have suffocated or died from heat exhaustion, we’ll never know.

But that isn’t murder in the 1st degree, which requires a higher standard of proof. Calling for the death penalty was the fatal error, sorry. The Prosecution was so sure it had a slam dunk it brought that attitude to court, it talked to the jury as if they were idiots, and the media circus didn’t help at all.

The jury, simply, did its duty.

This is what I love most about the Anglo-US court system. The paramountcy of the jury of peers. Post trial elitist reflections on how we need to have ‘better educated’ or ‘professional’ jurors really just benefit those who assume the results would be somehow, different, and worse, reflect a world where we institute a built in bias against the less fortunate and well to do in society.

Similarly, while I am not as well versed in the Italian Legal system, I do appreciate its culture and history and from everything that I have read about its independent judiciary, I would similarly defend the judgments of Italian courts. How many countries would have the guts to hold its own CIA torture trials? Certainly not the US/UK courts.

Which brings us to the trial of Amanda Knox and Raffaele Sollecito. Much as the weight of circumstantial evidence confirms their guilt, to me at least; much as I understand the Italian system better now thanks to the fine work of TJMK and PMF, I will remind people it isn’t a slam dunk either.

The missing 2nd knife, doubts cast on the double DNA knife, the not sloppy but definitely casual maintenance of chain of evidence recording and notations, the missing blonde hair, the decision to stick with Raffaele’s but not mention Amanda’s DNA on the bra, gives me pause.

I still think the prosecution has a strong case, and, barring the unlikely collapse of Dr. Stefanoni on the stand, may carry the day.The experts report was deeply flawed imo, and ought to be dismissed by the court. There just is no way the full weight of evidence can be thrown out and a verdict of not guilty entered.

In a normal environment, that is. But, nothing about this case was normal, so, I believe there will be further surprises.

Posted by Ergon on 07/07/11 at 03:41 AM | #

In my opinion, if the jury on The kercher case were deciding guilt with the death penalty as the outcome, they would also acquit. It’s too high a burden to live with and a very difficult trigger to pull - unless you have seen the crime and know exactly what the defendant was thinking… That said I dont understand how the manslaughter charge came back as not guilty…. I agree with you Ergon, there will be further surprises! But the smug look on AK and RS faces last time in court still discomforts me - it’s like they know they have gotten away with murder!

Posted by Giselle on 07/07/11 at 02:11 PM | #

Giselle, while I am convinced the experts leaked their findings to the defense team, I don’t believe the rot extends into the Hellmann court. What I do expect is more ‘surprises’ from the defense; they are an inventive lot. I also believe Dr. Stefanoni will defend herself quite well. Here’s a rebuttal I posted on the Huffington Post:

“I think the experts report is a crock because it refers to guidelines­, and not rules, and, more importantl­y, refer to papers published AFTER the murder and DNA analysis (thanks to the sleuths at PMF for that one) It also ignores the fact there is no agreed upon consensus on LCN DNA; the report (in Italian) nowhere uses the term “sloppy” referring to Dr. Stefanoni’­s findings (that is a Bruce Fisher invention)­. It only says the data is inconclusi­ve, and the findings on those two pieces WILL be contested quite vigorously in court. I doubt the mixed blood evidence will be ignored so cavalierly­”

Posted by Ergon on 07/07/11 at 03:02 PM | #

A typically intriguing article from Barbie Nadeau, making note of the similarities - and differences - between Knox and Casey Anthony.

Posted by Janus on 07/07/11 at 03:18 PM | #

Comparison of Casey Anthony predicament and Amanda Knox’s

Twelve points by Barbie there that I think are rather a stretch.

1) Both became tabloid darlings…</b>

Untrue. AK is widely portrayed as a framed innocent and CA almost universally as a villain

2) Both women misled investigators during their initial interrogations—Knox by falsely accusing an innocent man, and Anthony through myriad mistruths that made her look like a pathological liar.</b>

Misleading. That was far from AK’s only misleading statement. She made many dozens. See her half dozen alibis and written statements..

3) Each woman suffered bias (both in the court of law and the court of public opinion) because of behavior so outlandish that it helped net each of them a denial of bail or house arrest.</b>

Misleading. Suffered bias? AK was given psychological tests in prison and largely based on those several magistrates denied house arrest.  Also there was a fear she might flee. That shows no indication of bias.

4) And though each case had the requisite corpse, no murder weapon or clear sense of the homicides’ exact circumstances ever emerged.</b>

No murder weapon? The Massei court said it was the large knife and the independent DNA review that said the procedures were not to international standard is looking increasingly threadbare (see PMF chat now on the texts they followed, an odd bunch which Hampikian might favor but hardly the best.)

5) In the U.S., suspects are innocent until proven guilty, but in Italy (unofficially, of course) it is clearly the other way around.</b>

Untrue. The Italian system is HEAVILY slanted pro defendant, more than any other country in Europe. See recent posts on TJMK like this one:

6) Time, too, worked against Knox but in Anthony’s favor. Once it started in January of 2009, Knox’s Italian court, in typical European fashion, sat once or twice a week for a whole year, taking a six-week summer break, and the jury was free to read about the case between trial dates.</b>

Misleading. Knox’s trial was over in two years and two months, Casey Anthony’s took over three. Casey Anthony’s jurors had three years of Nancy Grace to watch. There was zero equivalent of Nancy Grace to watch in Italy.

7) Circumstantial evidence and character assassination played a major role in both cases, but it weighed more on Knox</b>

False. The character assassination by the US media of Casey Anthony was huge. Where was the character assassination of Knox?

8) The American jury deliberated alone with little legal guidance.</b>

False. Marcia Clark and others have suggested that it may have actually reacted to having too much.

9)  Knox’s lawyers—astonishingly, most American prosecutors would agree—didn’t coach her.</b>

Unproven. For all we know they may have organized every word she said in court and in Capanne. Knox has had boatloads of guidance. Not clear though that she understands or cares very much.

10) The appellate judge in Knox’s case granted an independent review of key forensic evidence that could free Knox, sending her home by Christmas.</b>

Misleading. It was only a fraction of the DNA evidence. The “independent” review seems to have been given a lot of help by Greg Hampikian. See chat now on PMF. And if the prosecution appeals an overturned conviction, the prosecution is sure to appeal to Cassation so “home by Christmans” seems a wild dream.

11) In her original trial, where she was convicted of murder, she wore her long hair down and donned Beatles t-shirts and snug jeans. She smiled at the cameras and passed chocolates to her co-defendant Raffaele Sollecito. Her lawyers let her “be who she is,” as they often told The Daily Beast. It was a huge miscalculation.</b>

Misleading. No sign in the Massei report this was a factor. It could have actually humanised her to the jury. Made her seem “normally odd”. The defense may have guided her into this.

12) Even last month, when her co-accomplice Rudy Guede placed her at the scene of the murder, Knox, incredibly, didn’t protest.</b></b></b>

Untrue. She did protest. Not very well but she said he blew a chance to tell the truth. And she tried to get in a statement ahead of when Guede spoke.

Posted by Peter Quennell on 07/07/11 at 05:48 PM | #

An online petition drive initiated by one Michelle Crowder to compel early reporting of missing children really takes off.

Posted by Peter Quennell on 07/07/11 at 07:14 PM | #

Just a small observation.

Reading the scurrilous scribblings of Bruce Fisher in ‘Ground Report’ I couldn’t help but notice that the self congratuarly blogs therein were all written by the same small group of Knox worshipers, which with some small variation, were saying more or less the same rhing which was how clever and smart Bruce Fisher is and how Knox will be home by Christmas.

Fisher only preaches to the choir anyway, but his small group of acolytes must only numbers about ten people at best given the silly repeats while using another name. It has become obvious that interest in promoting Knox has deminished somewhat at least that’s the observation today. Hopefully it will not change.

Posted by Grahame Rhodes on 07/08/11 at 11:23 AM | #

Harvard law professor Alan Dershowitz declaration about France’s criminal court is misleading : “In France, there’s a professional system. They have professional judges, professional prosecutors, professional jurors.”

In France, judges, prosecutors, lawyers are always professional, of course - that ensures that at least they really know the law.

Criminal court (cour d’assises) uses a jury composed in majority of non-professional, popular jurors : a yearly list of electing citizens is drawn for jury duty, and among this list, jurors are drawn for each case if and when needed.

The main judge and his 2 minor judges (assesseurs) are rightful members of the jury ; so there are 3 professional voices and 9 popular voices. By secret ballot, the jury decides about the guilt and about the sentence. For the accused to be guilty, a majority of 8 voices is needed. For the accused to be innocent, 5 voices are needed.

Portraying a foreign justice system as entirely professional, which equals dubious and wacky to an American mind, sure helps the American Ego. Being proud of one’s country is one thing, but maintaining a proud blindness towards whatever is not American is another. Hopefully it’s not generalized - or this site wouldn’t exist - but a member of the elite like an Harvard law professor should seek to open his compatriots’ eyes to the world, not to blind them with prejudice.

Posted by Sylviane on 07/08/11 at 02:19 PM | #

@Peter Quenell, about your comment on Italians maybe being afraid of American justice : I hope I’m not letting you down, but as an exchange student in the 1990s I was warned to be extra cautious in the USA, and extra wary of policemen and the such, unless I wanted to end up dead on the spot, or englued in the American justice system, whichever was worse was not clear.

And now as an adult European, I sure don’t have a good image of American justice. It seems very unrational, highly relying on uneducated people’s emotions, and reading that whatever a jury wrongly or rightly decided was God’s will - makes it even more frightening.

I hope I’m not hurting anyone’s feelings, and I apologize if I do, since I have nothing but respect for pious people, but if a decision made by 12 random human people can be deemed God’s will, you people are ready to be convinced to wage a Holy War anytime soon…

In secular France, no-one would ever say that God has any responsability in human decisions, mishaps or tragedies, without being scorned for hubris by believers like my very devout mother (“How dare you pretend that this event is God’s will ? God has set guidelines, then let anyone free to behave or not, so don’t held Him accountable for human doings”) - and laughed at by non-believers.

Posted by Sylviane on 07/08/11 at 03:22 PM | #


Often is meant we live in a reality and circumstances that are allowed by (a) god.

Posted by Helder Licht on 07/08/11 at 04:00 PM | #

Hi Silviane. Some very interesting comments. Merci. We are seeing lots of France now as the Tour de France is being broadcast on an NBC sports channel.

Yes Alan Dershowitz’s comments on juries are a strange mix. The impression I got (I saw him make the comments live) is that he would often go for a system like yours in his trials if he could, but he needed to put in things like the French finding the US system too “popular” and “democratic” so as not to loose the audience. (That didn’t stop the host Piers Morgan coming back at him quite strongly! Piers Morgan is a Brit.)

I think that countries simply cannot advance if they dont draw most of their lessons and knowhow from other countries. Upgrading government structures for example is tremendously arduous and difficult and if there is some advance already “over there” to point to that works, that can make all the difference. It sure cuts costs for one thing and it can melt popular resistance to see what success looks like in action.

If you go to public administration conferences here they do admire a lot of what is being innovated in other countries.

Some 20 plus years ago at private-sector business conferences where Japanese innovations like kaizen (total quality management) were all the rage. Americans were in awe of Japan. Then the bottom fell out of their property and stock markets.

The 50 US states learn a lot from one another and some are highly innovative. The best foundation I ever saw anywhere for broadbased public planning was in Oregon with their amazing indicators - quantitative targets for the state in education etc that are set by popular “vote”.

A lot more harmonizations and learning happens via the specialised arms of the United Nations than most people realise.

For example all Ministries of Education around the world are in effect the “ownership” of UNESCO. Ministries of Agriculture are the “owners” of FAO in Rome. And so on for aviation, maritime, telecommunications, and other areas. Their meetings are very heady stuff.

Justice and police are a little bit separate. There really is no international body just to develop them. As far as I can see the Italian system has both great features and great frustrations. A lot of changes were made around 1990. Now maybe more fine-tuning is required.

By the way the efficiency or no-efficiency of this global cross-fertilization of ideas very much affects rates of growth and thus the welfare of everyone on the planet. Belittling Italy which has some of the best technologies and products on the planet strikes me as seriously dumb.

I don’t get the impression that any of those wildly pro-Knox have more than average economic success.

Posted by Peter Quennell on 07/08/11 at 07:32 PM | #

Yeah, let’s go back to the good old days when only property owners and non-slaves and non-females were allowed to vote, and the magistrates were local squires who’d hang you for poaching on their enclosed land and transport you to Australia for stealing a loaf of bread 😉

Posted by Ergon on 07/08/11 at 08:49 PM | #

Hi Ergon. That made me smile. Is that your final word on European juries?!  Probably not and I know you have a good point. But just to repeat here a comment under the post above:

The three Casey Anthony posts we have up don’t take a point of view on the outcome. Each mainly seek moderation against a main Knox bandwagon talking point: negative media bias against Knox (of which I for one saw little) “caused” her verdict; the judges on her jury biased the verdict; her jury should have been sequestered.

The three learning experiences for Perugia suggest quite the opposite. In the Casey Anthony case (1) media bias actually didnt matter; (2) juries in both countries have their pluses and the Italian in some eyes looks pretty good; (3) sequestration would not neccesarily have given the Knox people “their” outcome (they didnt have Nancy Grace to incite them anyway, so what would be the point?).

Posted by Peter Quennell on 07/09/11 at 02:34 PM | #

Hi Pete, sorry that wasn’t clear. That was my reply to those who want more’professional’ juries and a continuation of my earlier comment on how I admire both the US jury system but also, the Italian judiciary.
But when I looked at the video of Jennifer Ford, I thought wow, she could be an Amandii, she identifies with Casey Anthony and brought her ‘feelings’ into the jury room.

Posted by Ergon on 07/09/11 at 06:56 PM | #

Peter, where Barbie stretched a point, make that 12 points, you brought things back in line with the Truth, elegantly.

I concur with aethelred23 about David Martin, he’s shooting very wide of the mark, rabid against Mignini.

Posted by Hopeful on 07/10/11 at 04:31 AM | #

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