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Friday Roundup

Siller Update.  When last we left Tom Siller, he'd just won a new trial from his aggravated murder conviction.  Long story short, (long story is here), Siller was one of three people who robbed an elderly woman's house; in the course of the robbery, she was beaten severely.  Siller was tried for attempted murder, with the State's key witness being one of his co-defendants, Jason Smith.  Smith's denial of his involvement in the beating was buttressed by police serologist Joseph Serowick, who testified that his examination of Smith's trousers showed no blood spots or splatters.

After Siller was convicted, the victim died, so he was tried for aggravated murder, with Smith making his star turn.  This time, though, Serowick admitted on cross that there was a spot of blood on the back of Smith's trousers; mid-trial testing showed it was the victim's.  The prosecution argued that it could've gotten there by Smith rubbing against Siller, and the jury bought it.

The case began to unravel when Serowick's testimony in an unrelated case was shown false, and a lab audit revealed problems with his testing in Siller's case.  The pants were retested, and instead of a single blood on the back, there were twenty splatters on the front, seven of the nine tested belonging to the victim.  Siller filed for a new trial, which was denied, but two years ago in a 2-1 decision, the 8th District reversed. 

And last week the State dismissed the charges against Siller when it received the results of other materials it had sent out for DNA testing:  the cloth strips used to bind the victim revealed that the only DNA found on them belonged to Smith.

Some kudos to the county prosecutor's office here:  the defense had never requested the bindings be tested; the State simply sent everything out on its own.

No doubt.  It's not possible to understate the significance burden of proof plays in a criminal trial.  I'd guess that in two-thirds of the acquittals I've had, the jury's told me that they thought my client did it, but weren't satisfied that the State proved it beyond a reasonable doubt. 

It's easy to define the burden of proof in civil cases, preponderance of the evidence, in statistical terms:  it's 51%.  But what about reasonable doubt?  Last year, I did a post (scroll down) mentioning that studies have shown jurors tend to use somewhere between 70% and 74% as a cutoff figure.  (How the studies came up with those figures I have no idea.) 

Of course, nobody tells jurors to use a number; definitions of reasonable doubt are much more ambiguous.  Back in 1990 in Cage v. Louisiana the Supreme Court held that an instruction defining reasonable doubt as "grave uncertainty" was unconstitutional because it suggested a higher standard than the "reasonable doubt" required by the Due Process Clause, but four years late in Victor v. Nebraska it upheld an instruction which allowed the jury to convict if they felt "an abiding conviction, to a moral certainty, of the truth of the charge."

Our stalwart legislature, seeking to remove any reasonable doubt as to the meaning of reasonable doubt, defined the term back in 1978 as being "proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs."  I've found that handy, especially in defending assault cases arising out of bar fights, where virtually all of the witnesses spent the hours preceding the incident consuming alcohol, providing you with an effective argument in closing:  "Which of the most important of your affairs would you decide based upon what a bunch of drunks told you?"

Other legislatures and courts apparently prefer ambiguity, however.  Legal Blogwatch points us to California, where the courts have consistently held that the term "best defines itself," and that "every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary."  One judge in a recent case, though, couldn't leave it alone, providing in the jury instructions "examples" of reasonable doubt such as "whether one cal tell what a jigsaw puzzle will show despite some missing pieces."  The defense attorney got into the act in his closing argument, providing three more examples:  his decision to marry, to become a parent, and a hypothetical about pulling the plug on a loved one who was in a persistent vegetative state.  After his conviction, the defendant appealed, claiming that the instructions on reasonable doubt were bollixed, but the appellate court affirmed, holding his lawyer primarily responsible,

although it would take more time and mental gymnastics than this jury possibly possessed to derive any inference relevant to reasonable doubt from what he said.  The only inference this court could derive from counsel's remarks is that counsel made two important decisions in his life, although he had reasonable doubts about their wisdom, and they happened to work out for him.  We have no idea what this means in terms of the burden of proof.  The implication, in terms of reasonable doubt, of his example of cutting off someone's life support also escapes us, despite many attempts to formulate one.  Again, we doubt that the jury put as much time and effort into it as we have.

Vacation time.  I'll be gone next week -- going to the Phoenix area, to hike through the mountains (yeah, surrrrre) -- but instead of closing the place down, I figured I'd something a little different.  In May, I'll have been doing this blog for five years.  As my legions of regular readers know, it's pretty heavy on the legal analysis, with only my snarky commentary keeping it from sliding into the territory commonly designated as BOOOO-RRRING.  But every now and then, I do a war story on a case I've had, and I usually get favorable feedback on those.  So I'm going to dig up some that I've done over the past five years, and post them next week so you won't have to go completely cold Turkey.

Enjoy, and I'll be back here live -- or as close to it as I get any more -- a week from Monday.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means