(Third in a series on crime and punishment)
Back in the early '90s, I was driving around Jerusalem one morning when the news broke that the Supreme Court of Israel was prepared to issue its verdict in the Demjanjuk trial after months of deliberation. Thinking to hear exciting and historic commentary, I pulled over to better concentrate on the decision as it was read over the radio. Instead of gory details, I ended up sitting through a 90-minute dissertation on the correct understanding of the phrase "beyond a reasonable doubt" in English and American jurisprudence.
It is boring as heck listening to a learned legal treatise being delivered in sonorous and self-important Hebrew by a judge into a microphone, but their conclusion was important. This formulation should not be taken to mean beyond any doubt a reasonable person might consider in deliberating the case. Rather it implies being clarified to the point where a reasonable person considers the matter no longer in doubt.
All that being said, it is undeniable that most juries have lost sight of this barometer. Arguably this represents the pendulum swinging back after the Melendez and O.J. Simpson verdicts in the mid-'90s, where a 99 percent DNA match did not meet the threshold. People thought we were getting away from the intent of the reasonable doubt clause and tried to season their doubt with more reason. Still, people should not be deprived of liberty, much less life, even for crimes they probably did, but only for crimes we feel certain that they did.
Recently we covered the Carlin and Linehan trials in Alaska, where a man was convicted although no proof was offered that he was even in the area at the time of the murder, and a woman was convicted of conspiring with him mainly because she was known to be fascinated by a movie about a woman who coaxed a man to kill for her. The only piece of hard evidence was Carlin's son's testimony that he thought he saw them washing blood off a gun afterwards. Well below the standard.
A more egregious instance, in my view, was the trial earlier this year of Melanie McGuire in New Jersey. Her estranged husband's body was found cut into pieces in luggage belonging to the family and thrown into a river some miles away. The garbage bags used to pack the body parts were linked through amazing forensic science to bags in their home. A bed sheet used as wrapping came from the fertility clinic where she worked as a nurse.
No one heard any shot from their home. Intense police searches could find no blood traces anywhere. No cutting implement was found. No one saw her remove luggage or dump the bodies. The prosecution theory was that she drugged the husband with chloral hydrate, a Mickey Finn in slang, then shot and dismembered him in the house. Some of that drug had been purchased in a local Walgreen's using a forged prescription from Dr. Miller, the head of the fertility clinic...with whom she had been conducting an affair.
Interestingly no one considered Miller as a suspect. (The defense can't afford to advance that, because they want to downplay the prejudicial effect of the adultery.) The prescription came from his pad, the bed sheet from his clinic. He seems strong enough to do the heavy lifting, while she does not. He could have lured the husband to the clinic after hours and killed him there, a much better venue for vivisecting corpses and then scouring vestiges. Instead the police trusted him as their spy and had him call her on tape, asking if she had done it. She said certainly not.
These cases hold a definite fascination for the deductive mind. Yet they fall well short of conclusive proof. I was eight years old in 1966 when F. Lee Bailey got Dr. Sam Sheppard acquitted in a retrial for the 1954 killing of his wife. Sheppard spent ten years in prison and could never really put his life back together afterwards, dying an alcoholic at age 46. DNA evidence pretty much exonerated him in 1998, and it seems most likely his wife really was killed by the bushy-haired intruder Sheppard claimed he tried to restrain. It was later discovered that their window washer, Richard Eberling, had murdered other women, wearing wigs over his bald head.
Police always mock the idea of what they call the BHS, the Bushy Haired Stranger. Still, if you ever take a moment to ponder it, you will be chilled to realize that if your spouse is murdered at home and you have no alibi, you will almost certainly be convicted. Neighbors will testify they heard you yell "Drop dead!" during a domestic dispute. Anyone you ever griped to about the marriage will show up to tell the jury. And if you were having an affair, you really have zero chance of acquittal.
Reasonable doubt, my friends. It protects you and me. Nurture it well.
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