The perfect witness who won't testify

[Wickerman]

Since a Jew couldn't swear on the bible, the courts were rumored to use other methods of intimidation, sometimes pretty frightening, or painful.

If you notice at the Stride Inquest the Jews from the Club were "affirmed" rather than "sworn".

William Wess [West], who affirmed instead of being sworn,...

Lewis Dienishitz, having affirmed, deposed:...

Morris Eagle, who also affirmed, said:...

Regards, Jon S.

[Robert]

So, to clarify : suppose that Schwarz had seen BS actually pull a knife on Stride, but that Schwarz had not waited to see what happened next, and had bolted. Surely Schwarz would have been allowed to identify BS at a later date?

[RivkahChaya]

If you notice at the Stride Inquest the Jews from the Club were "affirmed" rather than "sworn".

I wasn't talking so much about what actually happened in London at the time, as what a Jew might have feared happening based on legend. And that was a coroner's inquest, not a trial.

So, to clarify : suppose that Schwarz had seen BS actually pull a knife on Stride, but that Schwarz had not waited to see what happened next, and had bolted. Surely Schwarz would have been allowed to identify BS at a later date?

Not in front of a rabbinical court where execution was the issue, because a rabbinical court had the further requirement that the witness warn the perpetrator of the consequence of the crime (ie, execution) if he continued.

But Talmudic law does not apply to an English court, which is why the whole line of reasoning is a little silly if you ask me.

It's entirely possible that a Jew did not want to be the sole witness at a death penalty trial for personal reasons, or even for perceived religious ones, because he had been brought up with a particular religion-based view of the death penalty, and did not want to be part of it being administered, but that is not that same thing as saying it's "against his religion." By way of comparison, a lot of Christians find the idea of working on Christmas highly objectionable, just because they've been brought up spending the day a certain way, but it's my understanding that there isn't anything in the bible that actually prohibits one from working on Christmas. (Yes, I know that within the Roman Catholic Church, Christmas is a holy day of obligation, and one must attend mass, but I don't know whether work is not permitted on those days by the RC church.)

[Robert]

As far as I know a Christian might have a religious problem with working Christmas Day if it fell on a Sunday, but that's a different issue.

I suppose some people might have problems giving evidence in murder trials in death penalty countries, or might refuse to serve on juries. This might be owing to moral or religious scruples. But as you say, there is nothing unique to Judaism that would cause special problems for a Jew called to testify in a state trial, whatever the defendant's nationality or putative crime.

[RivkahChaya]

I suppose some people might have problems giving evidence in murder trials in death penalty countries, or might refuse to serve on juries. This might be owing to moral or religious scruples. [emp. added]

In the US, if you are called to jury duty, and the case is a death penalty case, you are asked during voir dire if you would have a problem with either delivering a verdict of guilty, knowing that the defendant could get the death penalty, or voting for the death penalty during the penalty phase of the trial (in the US, a jury, not a judge, or statute, sentences a person to death). If you answer yes to either question, you are dismissed from the jury pool. Generally, the lawyers don't ask the reason, because you can't be dismissed from a jury because of race, religion or gender (although, lawyers can dismiss a certain number of people without stating the cause, so occasionally, people still do get dismissed for those reasons, because the opposing lawyer doesn't want to challenge it). If you say you are opposed to the death penalty, the lawyer can dismiss you for that reason alone, so it makes no sense for him to explore the cause, because if you state that it is because you are Catholic, or Jewish, or whatever, the other lawyer may challenge the dismissal.

A jury where everyone has stated that they do not object to the death penalty in theory, or are not opposed to it in principle, or do not believe that it is "cruel and unusual," and could personally vote for it (that last bit is important-- there are lots of people who are not philosophically or religiously opposed to the death penalty, but could not personally deliver the verdict) is referred to as "death penalty qualified," meaning qualified to hear a death penalty case.

I'm not sure if anyone has tried using this as grounds for appeal, in that the jury was not representative of the community, especially if it really can be demonstrated that the community from which the jury was taken is overwhelmingly opposed to the death penalty, but if it were, it probably would not work, because jury nullification, is technically illegal, albeit, almost impossible to prove, and there is no punishment for it, per se (there might be punishment for a juror who threatens or coerces other jurors into nullifying, but that's probably because it would be jury tampering). At any rate, knowledge of a juror's intent to nullify is grounds for dismissal (United States v. Thomas, 1997), and stating that one opposes the death penalty, and would not impose it under any circumstances is pretty much stating intent to nullify.

[Robert]

What about those cases where there has been a miscarriage of justice because of a mere technicality? Does the judge simply close the case and send the jury home, or does he instruct them to find the defendant not guilty (in which case they could refuse?)?

[RivkahChaya]

Oh, as far as giving evidence-- if you don't want to, but have information crucial to the prosecution's case, you will be subpoenaed. If you don't show up, the judge will issue a warrant for your arrest, and the sheriff will track you down and bring you in, where you will be escorted to the witness stand. The prosecutor will be given permission to treat you as "hostile," which means he will be allowed to ask you leading questions, that otherwise would be considered feeding you information.

After the trial, if the prosecutor is feeling generous, he might let you go. Or, he might charge you with obstruction of justice, failure to appear, and anything else he can think of; if he thinks you hurt his case, he most certainly will. If you lie on the stand, he will charge you with perjury. If your hijinks somehow contribute to a mistrial (for example, what should have been a slam dunk results in a hung jury), it will happen all over again, and you might end up in "protective custody" during the second trial to make sure you show up this time.

Now, it certainly looks better for the prosecution if all the witnesses are cooperative, which is why you get plea bargains, immunity, police protection if you have been threatened, and all kinds of sweetness and kid-glove handling from the prosecution at the outset. But the prosecution is not going to leave someone dangerous on the street because you are having a crisis of conscience.

I'm not sure what things were like in 1888, but the power of subpoena did exist.

That's why I think there's a aura of legend around the witness who was otherwise perfect, except for an unwillingness to testify. I find it hard to believe that one person had something to say that made an iron-clad case all by itself, but furthermore, I find it hard to believe that if such a witness did exist, the police would walk away just because he did not want to testify.

I think one of several things must have been going on:

The witness was not perfect. He may have made an identification that satisfied the police, but it might not have been firm, and as evidence for a trial, it needed corroboration, either by another witness, by physical evidence, or by a confession of some type, even if it were rantings that were reported second-hand (which might be permissible in the case of a doctor reporting symptoms).

The witness wasn't very impressive. He didn't speak English, and wouldn't go far in convincing a jury. The police believed him, but juries had different experiences of people.

On top of that, if the suspect was confined and unable to harm any more women, there wasn't much of a rush to continue work on the case, and there were probably other things-- the torso murders, for one.

The witness may have expressed a religious objection, or just a with to speak with his rabbi, and with all the other problems, the police decided to deal with his religious problems later, when, and if, a trial came up.

As the story got retold, the mundane parts, abour corroborating evidence and sorforth fell away, and the more interesting and distinctive things, like the witness consulting his rabbi became the focus of the story, and instead of the witness at trial being not so necessary, the story came to be about the witness holding up the trial.

[RivkahChaya]

What about those cases where there has been a miscarriage of justice because of a mere technicality? Does the judge simply close the case and send the jury home, or does he instruct them to find the defendant not guilty (in which case they could refuse?)?

I'm not sure what you are talking about. You'll have to give me an example.

A "miscarriage of justice" by a "mere technicality" can mean a lot of things. But if at some point during a trial, the prosecution realizes it has the wrong person, the trial can be stopped, and the person let go. Also, charges can, and often are, dropped before a case goes to trial.

A judge cannot instruct a jury to bring back a particular verdict. A judge can deliver a judgment notwithstanding the verdict. This happens in civil trials most often, when a judge immediately lowers a ridiculous award (which happens sometimes because a jury doesn't realize something, like a jury awards "all the money McDonald's makes on coffee in one day," thinking that will be about $200,000, but it's really $20,000,000). Very rarely, a judge will enter a JNV in a criminal case, by declaring a defendant not guilty, after a jury finds him guilty, but a judge cannot do the reverse, because that violates both double jeopardy, and a person's right to a trial by jury.

The prosecutor in a criminal can appeal a JNV; essentially, the judge is saying that the jury acted unreasonably, and a different jury would not have come up with the same verdict. The judge needs to be prepared to defend the decision. If he (or she) can't to an appeals panel, while the prosecutor can demonstrate that the jury reached the correct decision based on the evidence, the guilty verdict can be reinstated. I don't know that this has ever happened, just that the law allows for it.

[Robert]

There was one possible eyewitness to an actual murder. If I recall, the man's name was 'Shine.' However, it's by no means simple and I think there may be two or three versions of the story. I was in contact with a family descendant a few years ago, but too much time had passed and it was a question of glimpses and shadows.

[Robert]

Well, here's one (invented) : suppose a trial is nearing the end, the defendant has not submitted any good points, whereas the prosecution has a raft of hard evidence which the defence doesn't challenge. Just before the jury is to go out, the judge inadvertently says something that he shouldn't have said, e.g. he reveals some previous comviction of the defendant's that was supposed to have been kept secret, or he mumbles something like "let's hope they fry this Chinese mother******" at which point his conduct of the trial is challenged by the defence team...all sorts of things can happen. The defence might find an obscure loophole which means there's no charge to answer.Who knows?

[RivkahChaya]

Well, here's one (invented) : suppose a trial is nearing the end, the defendant has not submitted any good points, whereas the prosecution has a raft of hard evidence which the defence doesn't challenge. Just before the jury is to go out, the judge inadvertently says something that he shouldn't have said, e.g. he reveals some previous comviction of the defendant's that was supposed to have been kept secret, or he mumbles something like "let's hope they fry this Chinese mother******" at which point his conduct of the trial is challenged by the defence team...all sorts of things can happen. The defence might find an obscure loophole which means there's no charge to answer.Who knows?

Uh, in that situation, the defense attorney asks for an immediate mistrial. If the judge doesn't grant it, then the defendant has a really good case for an appeal based on the judge's misconduct. That's no "mere" technicality, though. That's serious misconduct by a judge who ought to be removed from the bench and disbarred. If it turns out he is old, and in the first stages of Alzheimer's, or was in some other way very ill and didn't realize it (like, he had meningitis, or had fallen and hit his head that morning) he may be allowed to resign in good standing. Otherwise, he's going to be mailing his resume out to community colleges by the end of the week.

A new trial will commence with a different judge.

The defense is not required to present a case. Sometimes the defense lawyer wants to use an "affirmative defense," which means arguing special circumstances, rather than the facts of the case, like insanity, or self-defense, or battered-wife syndrome. The defense is allowed to cross-examine all the prosecution's witnesses, and is allowed to present counter-arguments, like presenting an alibi witness, or an expert who calls into question the prosecution's own experts. The prosecution is also allowed to present an alternate theory of the crime by which another person is accused-- this happens all the time on TV, but not so much in real life, although the defense attorney will take any opportunity to show that a conclusion is a leap of faith, or post hoc error: eg, just because the defendant's fingerprints are on something doesn't mean he touched it at the crucial moment relevant to committing the crime.

If all of the prosecution's evidence is shaky piece by piece, and the prosecution is hoping that the jury will think that all of it together can't be a coincidence, but when you get down to it, you have a witness account by a very traumatized victim, who insists, emotionally, the person at the defendants table did it, but did not initially pick the person out of a line-up, fingerprints that could have been left at another time, and a defendant whose alibi is that he was home alone at the time, substantiated only by a neighbor who heard his TV on, but didn't actually see him, the defense attorney can say to the jury "The prosecution doesn't have a case. The burden of proof is on the prosecution, and the prosecution has not met it. We don't need to present you with reasonable doubt, because you should already have it."

[Robert]

But I meant those situations where the defendant is obviously guilty, and is just about to be found guilty, when the judge or someone else says something that couldn't really influence the jury, since their minds were made up before then.

On the whole business of juries being influenced, does a lawyer have to give up appearing in court if he or she becomes a politician?

[RivkahChaya]

But I meant those situations where the defendant is obviously guilty, and is just about to be found guilty, when the judge or someone else says something that couldn't really influence the jury, since their minds were made up before then.

That situation doesn't exist. The defendant is never "just about to be found guilty." You don't know what a jury will decide until it has decided. I've been on a jury. It's possible that on the first vote, eleven people will vote "guilty," and one will vote "not guilty." Then after a couple hours of discussion, eight will vote "guilty," and four will vote "not guilty." Some juries choose to vote by show of hands, and some choose to vote by secret ballot, but either way, in what I just described, the "not guilty" vote in the first count may have been a "guilty" in the second.

The jury vote is never a foregone conclusion. Just ask Casey Anthony or Damien Echols. If it were a foregone conclusion, we wouldn't need jury trials in the first place.

Now, sometimes when something unusual happens in the courtroom, like a family member of the victim having an outburst, or a witness blurting out something on the stand that was part of information ruled inadmissible, the judge will tell the jury to disregard it. If the defense or prosecuting attorney claims that whatever happened or was said was unduly prejudicial, and asks for a mistrial, the judge may decide to call each juror separately into his chambers, with both lawyers present, and interview the juror on the effect of whatever happened, and ask whether the juror thinks that it affects his (her) ability to make an impartial decision. If the juror thinks he can no longer be impartial, the judge will dismiss him, and call in an alternate, interviewing the alternate the same way. If too many jurors are dismissed, and there are not enough alternates to replace them, or the alternates have been similarly dismissed, then the judge will have to declare a mistrial.

On the whole business of juries being influenced, does a lawyer have to give up appearing in court if he or she becomes a politician?

By "politician," I assume you mean some kind of representation, or elected executive, like a mayor, senator, or something. Other than a very small potatos job, like being a local district representative in a small city, those elected positions are full-time jobs. Some is being a criminal attorney, or working for the prosecutor's office. If you are running for office, and work for the prosecutor (that is, are an assistant DA, al la Jack McCoy on Law & Order), you will be asked to resign, because you won't have the time for both.

Now, whether you continue to pay you dues and maintain your membership in the American Bar Association is up to you. Most people who don't intend to practice do not, because it's a lot of money, but some do. Michelle Obama stopped paying her dues when she became a full-time parent when he husband ran for senate, and so her detractors claimed she "lost her license to practice law." That would be the same thing as saying that you lost your driver's license simply because you didn't bother to renew it when you were living in a large city with excellent public transportation, but also high insurance rates for car owners. It's not the same thing as having your license revoked after your third DWI.

So, the answer is that being a practicing criminal attorney, and holding a political office each take too much time for one person to be able to do them both, but there is no law that says you can't try.

Now, there is also the question of conflict of interest. You want your lawyer to represent your interests, and he won't be able to do that very well if he is worried about losing votes. If you are on trial for killing your child, and are very unpopular, like Casey Anthony, that's going to rub off onto your lawyer; if he's worried about re-election, you have to worry about how zealously he'll represent you. Then, there are all sorts of specific conflicts of interest. You want your lawyer to be free of even the appearance of problems. That goes double for the prosecuting attorney, because any appearance of bias may be grounds for appeal.

[Robert]

In theory a juror should have an open mind throughout the whole trial. That isn't incompatible with forming opinions while the trial is taking place. E.g. a juror might feel "I didn't like defendant's explanation there" or "That prosecution witness held a grudge." If a juror gets to the end of the evidence without forming any opinions at all, then he hasn't been listening.

Sometimes the guilt or innocence of the defendant is virtually certain. Even there, though, some discussion in the jury room will serve as an extra check.

It must be different for you over there. Over here we have MPs who put in a few hours each week at Westminster and still find time to work as barristers. In my opinion, they should not be allowed to appear in the courts before a jury. Jurors should not be at risk of allowing their opinions of a barrister's politics to sway their opinions of the evidence.

[Bridewell]

It must be different for you over there. Over here we have MPs who put in a few hours each week at Westminster and still find time to work as barristers. In my opinion, they should not be allowed to appear in the courts before a jury. Jurors should not be at risk of allowing their opinions of a barrister's politics to sway their opinions of the evidence.

Hi Robert,

I'm amazed that they're allowed to do it. Firstly, being an MP should not be seen as a part-time job, Secondly, I think there is a clear conflict of interests when a person is involved in both the legislature and the courts, especially in a professional capacity.