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The appearance of fairness

Some judges allow jurors to ask witnesses questions at trial, a practice that was upheld by the Supreme Court in 2003 in State v. Fisher.   A lot of lawyers don't like it.  It may have saved Tom Siller 30 years, as last week the 8th District, in State v. Siller, bya 2-1 vote game him a new trial.

The case goes back to a night in June 1997, when the police found an elderly woman severely beaten in her home in Cleveland.  Attention focused on Siller and two other men, Jason Smith and Walter Zimmer.  Smith was arrested first, and eventually made what the appellate court termed a "breathtakingly favorable plea deal":  if he'd testify against the other two, two drug cases against him would be dropped, he'd get an  agreed three-year sentence for this crime, and immunity from prosecution for aggravated murder should the victim die from her injuries.  Which she did.

Siller was tried for attempted aggravated murder, and convicted largely on the testimony of Smith, who claimed to have participated in the robbery, but to have been outside the room when the victim was beaten.  That testimony was buttressed by that of police serologist Joseph Serowick, who testified that an examination of the trousers Smith had worn that night disclosed no blood spots or spatters. 

After the victim died, Siller was tried again, this time for aggravated murder, and that trial largely paralleled the first one.  Until Serowick testified; under cross-examination, he acknowledged that there was a stain on the back of the one leg of the trousers.  That prompted a question by one of the jurors:  "Now that the technology for DNA testing is available, have you been asked to retest the identified bloodstains?"  Serowick answered that he hadn't been, but the judge stopped the trial and ordered him to do so.

When the trial resumed, Serowick returned to the stand and admitted that the stain on the back of the pants leg was a spot of the victim's blood.  After briefly considering dismissing the case and trying to vacate Smith's immunity agreement, the State decided to press on, arguing that the single spot could've gotten there by Smith brushing up against Siller.  The jury bought it and convicted Siller.

Three months later, a defendant in an unrelated rape case was exonerated when Serowick's testimony linking him to the crime was proven false.  Serowick was fired, and an audit of the lab revealed deficient documentation of the results in Siller's case.  Siller moved for retesting of the trousers, which revealed that instead of a single spot of blood on the back of the trousers, there were twenty blood splatters on the front; nine of them were tested, and seven were found to belong to the victim.

The trial judge, who hadn't presided over either of Siller's trials, denied Siller's motion for new trial, finding that the newly-discovered evidence didn't disclose a "strong probability" of a different result.  But the majority of the appellate panel notes that the "strong probability" standard is a relic of a 1947 decision, and that Brady v. Maryland and its progeny set forth a more lenient standard:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but, whether, in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.  A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

The dissent argues that Siller doesn't meet this standard, either, and the argument isn't without merit.  Siller gave conflicting stories to the police, never testified at trial, and there was pretty solid evidence that Siller had been in the home at the time of the beating.  The dissent also argues that the State hadn't intentionally introduced evidence it knew was false; while Serowick was incompetent, no one alleged that the prosecutors were complicit in presenting bogus testimony.  In fact, the dissent argues, Serowick's credibility was so completely destroyed at the second trial that revelation of the blood splatters would have been inconsequential.

I don't buy that.  I think the majority is right in its other major holding, that whether the failure to disclose exculpatory evidence results from malfeasance or simple misfeasance is immaterial.  The effect is the same:  the jury has been denied critical evidence.  What's more, I think the majority is right in focusing on the fairness of the trial, rather than parsing how the undisclosed evidence might have affected the outcome.  The bottom line is that the prosecutor stood up in closing argument at Siller's aggravated murder trial and told the jury

Remember, this spot was a very small stain. Remember, Andrea Fischer told you that it was contained within a three-eighths inch by three-eighths inch cutting on the back of this pants leg, the left pants leg. Does that mean that [Smith] is the one that beat Lucy Zolkowski? If he had been the one to beat Lucy Zolkowski, I would submit to you that there would be more blood and it would be on the front of his pants.

Well, there was more blood, and it was on the front of his pants.  The defense had argued that Smith was really the one who had beaten the victim, and was telling a different story to get a favorable plea deal.  The prosecutor argued for, and obtained, a conviction on the theory that Smith could not have done that, or else he would have been splattered with blood.  It turns out he was.

Sometimes we get so caught up with the law, talking about elements of crimes and items of evidence as though they were pieces we were moving around on a chessboard, that we lose sight of the fact that law isn't an end in itself, it's a means to an end:  justice.  Joe Siller got convicted in a trial in which the jury was given a completely false picture of the forensic evidence.  That's not fair, and sometimes a fair result is more important than a right one.

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