Friday, July 27, 2007

Consciousness of Guilt -- Understanding the Concept

I take this explanation of why Consciousness of Guilt is considered by the majority to be a valid measure of one's guilt from ALBERTY v. U S, 162 U.S. 499 (1896).

The basic concept, as quoted from the Trial Court's Jury Instructions

It is a principle of human nature-and every man is conscious of it, I apprehend-that, if he does an act which he is conscious is wrong, his conduct will be along a certain line. He will pursue a certain course not in harmony with the conduct of a man who is conscious that he has done an act which is innocent, right, and proper. The truth is-and it is an old scriptural adage-'that the wicked flee when no man pursueth, but the righteous are as bold as a lion.' Men who are conscious of right have nothing to fear. They do not hesitate to confront a jury of their country, because that jury will protect them. It will shield them, and the more light there is let in upon their case the better it is for them. We re all conscious of that condition, and it is therefore a proposition of the law that, when a man flees, the fact that he does so may be taken against him, provided he does not explain it away upon some other theory than that of his flight because of his guilt.

'A man accused of crime hides himself, and then absconds. From this fact of absconding, we may infer the fact of guilt. This is a presumption of fact, or an argument of a fact from a fact.'

'Flight by a defendant is always relevant evidence when offered by the prosecution, and that it is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense, feeble or strong, as the case may be, a confession; and it comes in with the other incidents, the corpus delicti being proved, from which guilt may be cumulatively inferred.'

The charge to the Jury in Hickory v. U. S., 160 U.S. 408, 16 Sup. Ct. 327, was even stronger:

in which a charge . . . was held to be tantamount to saying to the jury that flight created a legal presumption of guilt, so strong and so conclusive that it was the duty of the jury to act on it as axiomatic truth.

The Supreme Court offered this wisdom in response to the human inclination to believe that flight, or other behavior, is evidence in and of itself that the person committed the crime.

While, undoubtedly, the flight of the accused is a circumstance proper to be laid before the jury, as having a tendency to prove his guilt, at the same time, as was observed in Ryan v. People, 79 N. Y. 593, 'there are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances.'

We have seen in the Peterson case and the Kimble case that Detectives are very prone to basing suspicion on post-crime behaviors, assuming that any odd behavior is a consciousness of guilt. A common way of wording it for the husband of the victim is to say, He's not acting like a grieving husband. I have no objection to detectives noticing behaviors that seem out of the norm and putting someone through a thorough investigation based on this. However, a good detective knows that if the investigation does not produce independent evidence, then the seemingly abnormal behavior is not consciousness of guilt.

Jurors are very likely to have these same deeply-felt opinions about consciousness of guilt -- that certain behaviors are compelling evidence of guilt, even without any other evidence to support a conclusion of guilt. This propensity, coupled with blanket trust in police and prosecutors, will guarantee a conviction unless the Defendant is able to prove innocence. That is what the prosecutors count on.

Thursday, July 26, 2007

A Mother's Pain

An excerpt from the Transcript for Ted Kimble's sentencing hearing, as spoken by his mother, Edna Kimble, to the Judge.

I have faced him, looked him in the eyes, and I have asked him did you kill your lovely wife. And he told me no.


As you make judgment on my son today, I would like for you to remember that you judge him -- you will be judging him as an innocent man. (Witness is crying.) I know who I raised and I know he's not a killer. And that's what I would like you to consider. To be merciful to him because the years that you put him in prison, I too will be in prison. Until I have victory over this, every day of my life will be like this. Every day I cry. And the crying won't stop because the pain is going to be always there that I can't hold him. I can't watch him laugh. I can't go to dinner with him like I used to. And every time I face him I have to know that I'm looking at an innocent man in prison for a crime he didn't do.

If you believe Ted Kimble is guilty, then you likely have no sympathy for his Mother. The Judge certainly had no sympathy for her, as he gave Ted the maximum sentence allowed by North Carolina law.

But if you believe he is innocent, as I do, then her pain compels you to do what you can to expose the truth about what happened on October 9, 1995, the day Patricia Kimble was brutally and senselessly murdered.

Visit the Kimble website to learn more about this wrongful conviction.

Is flight evidence of guilt?

Excerpts from Dill v. Indiana, Indiana Supreme Court

The defendant, Michael S. Dill, was convicted of burglary and conversion. He was acquitted of two counts of theft. The Court of Appeals affirmed. Dill v. State, 727 N.E.2d 22 (Ind. Ct. App. 2000). We granted transfer to address the defendant's claim that the trial court erred in instructing the jury that it could consider the flight of a person after the commission of a crime. The Court of Appeals observed that Indiana jurisprudence remains unclear about the use of such instructions.

In this appeal, the defendant argues, in part, that flight instructions are inherently improper. The State urges that the instruction correctly states the law, noting several recent cases in which this Court has failed to find error in the giving of a flight instruction. In Bellmore v. State, 602 N.E.2d 111 (Ind. 1992), we confronted an instruction that informed the jury that flight and other actions calculated to hide a crime, though not proof of guilt, are evidence of consciousness of guilt and are circumstances which may be considered by you along with other evidence. Id. at 119. Responding to the issues presented, we found that the instruction could not "'reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense.'" Id. (quoting Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344, 354 (1985)). Although we concluded that the specific language of the instruction, particularly in the context of the other instructions, did not constitute infringement of the defendant's right to due process of law, we nevertheless recommended against the future use of this instruction, but did not articulate our reasons or otherwise provide explicit guidance. Since Bellmore, we have repeatedly noted this recommendation but have not actually applied it to find error.

This instruction is inherently contradictory because it simultaneously informs the jury that a person's flight after the commission of a crime is "not proof of guilt" but yet is "evidence of consciousness of guilt" and "may be considered."

However, although evidence of flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel's closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence. To the contrary, instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved.

Over one hundred years ago the United States Supreme Court, reversing a murder conviction because the court's flight instruction was misleading, observed:

[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that "the wicked flee when no man pursueth; but the righteous are bold as a lion." Innocent men sometimes hesitate to confront a jury, --not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves.
Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051, 1056 (1896)

The Indiana Supreme Court affirmed Dill's conviction, in spite of the unwise use of the flight instruction by the trial court.

Update on the $101 Million dollar award

Judge Gertner awarded $26 million to Limone, $29 million to Salvati, $13 million to Tameleo's estate [Tameleo died in prison] and $28 million to Greco's estate [Greco also died in prison]. The wives of Limone and Salvati and the estate of Tameleo's deceased wife each were awarded slightly more than $1 million, and the men's 10 children were each awarded $250,000.

Judge orders fed government to pay $101M to men wrongly imprisoned after FBI withheld evidence

Excerpts from Sign On San Diego dot com

A federal judge Thursday ordered the government to pay more than $101 million in the case of four men who spent decades in prison for a 1965 murder they didn't commit after the FBI withheld evidence of their innocence.

The judge called the government's defense that the FBI had no duty to get involved because it was a state case “absurd.”

The government argued that federal authorities had no duty to share information with state officials who prosecuted Limone, Salvati, Henry Tameleo and Louis Greco. Federal authorities cannot be held responsible for the results of a state prosecution, a Justice Department lawyer argued.

The wrongful convictions occurred because the FBI granted its informants license to murder and to cover-up those murders by framing innocent men under the illusion that the informants were useful in bringing down the Mafia. Surely there is a better way to fight crime . . .