In October I sat among twelve people who convicted a man of first-degree murder. A grim and solemn occasion. The accused was charged with the murder of his infant daughter and the assault of his daughter's mother. The woman, who was six months pregnant at the time, was repeatedly punched in her swollen abdomen by a stranger. The baby girl was born prematurely as a result of the assault, and she died nine days later. The state alleged that the father planned the crime with the attacker, and that in so doing he had procured the death of his daughter.
The prosecution laid out a damning circumstantial case against the defendant, but there was no evidence presented in the trial that directly linked the two men together in this crime. The defense attorney seized upon this apparent factual gap, and in his closing arguments, he brought up an old logical and scientific adage, "you can't prove a negative." He was trying to say that the defendant could never "prove" that he wasn't involved, and since the prosecution did not definitively show that he was, the jury must acquit his client.
I wrestled with this argument during deliberations and afterward. It has a powerful resonance! Did that gap in evidence constitute "reasonable doubt"? But I kept coming back to the judge's instructions: "intent, being a process of the mind, is wholly subjective and may not be demonstrable through direct evidence alone," and again "use the evidence presented, your knowledge, experience, and common sense to reach your verdict."
In the end, the circumstantial case was enough for me. I did my best to persuade my fellow jurors, and together we voted to convict the defendant on all charges: first degree murder with premeditation; second degree murder with intent; and first degree assault, great bodily harm. In a bit of courtroom theatrics, the defendant's brother stormed out, slamming the door with terrific force. But our service was complete.
After the trial, in chambers, the judge revealed that the man who committed the assault, who had plead guilty and is serving forty years for his role in the attack, refused to testify at the last moment. He had been threatened by the defendant that we had just convicted! I think that assuaged some of the jurors who felt that we needed to hear the attacker's testimony in order to convict on all counts. After all, his testimony had been promised in the prosecution's opening remarks, and it would have filled the evidentiary gap in the case. It was the 'pat on the back' that they had done the right thing.
For me, however, it was sobering: in making an argument, I tend to assume a posture of certainty. Whether they realize it or not, I think most people do. It is more expedient; it inoculates oneself against errors and the unknown. Unfortunately, this posture does not help to reveal truth, and can all-too-easily obscure it. Lesson learned. Again.
Apart from the epistemological challenges that I continue to dwell upon in the aftermath of this case, there is also the question of imposing a first-degree murder sentence upon someone for the death of a fetus. In retrospect, I wish I had discussed this question with my fellow jurors. By doing what they did, these men did commit murder; the law is very clear on this point. But it also leaves me unsatisfied. I've been a fairly strong supporter of choice, and I wonder how I can square my vote to convict, these laws, this precedent, and my views on choice.
Does this man deserve to spend life in prison without the possibility of parole because he didn't have the self-awareness, courage, and foresight to ask his girlfriend if she would consider an abortion? I don't know. Why did he have such crippled faculties of mind that he did not so much as ask? I don't know that either.
For the pain he caused and the evil that he did, he will be punished. But I feel pity for him and for the fellow who carried out the assault, for I see them as tragically ignorant fools.