Former prosecutor doesn’t like the burden of proof

David Lat, a former prosecutor, has weighed in on the Dan Markel murder trial.  For those who don’t know about the case, Markel was a law prof at FSU who got into a nasty divorce and child custody battle with his wife.  There was plenty of vitriol flying in both directions.  And when Markel was shot point-blank in the head while pulling into his garage, the police suspected the wife’s family of setting up the hit.  For those who enjoy true crime, the podcast Over My Dead Body did an excellent job covering the case.  (Click here and scroll down to season one, called Tally.)  I found everyone involved in the saga to be very unlikable, yet I couldn’t stop listening to the podcast and, in fact, listened twice.

Recently, post-podcast, one of the two alleged hit men and his girlfriend, who allegedly setup the hit on behalf of the wife’s family, went to trial.  David Lat predicted that the defense would merely hammer away at the reasonable doubt standard.  Lat first paid lip service to the importance of the burden of proof, but then wrote that “it’s also the last refuge of defense lawyers with nothing better to argue.”  What would Lat have defense lawyers do instead?  He explained: “What I would want (but don’t expect) from defense counsel: a coherent, compelling alternative theory” of the case.

There are several problems with Lat’s wish.  First, some courts specifically instruct jurors, within their reasonable doubt jury instructions, to consider alternative theories of the case.  But as I've written before, the problem is that these “alternative-hypothesis instructions focus the jury not on what the government must prove, but on the defendant’s ability to produce alternatives to the government’s case, and thereby shift the burden of proof to the defendant.” (Internal quotes and citations omitted.)

Second, and more significantly, “Aside from the obvious due process violation, such burden-shifting is also incompatible with the harsh realities of our criminal justice system. In many cases, the government controls and develops the physical evidence and even has exclusive access to key witnesses, all of which makes the development of alternative hypotheses very difficult. Worse yet, generating such a hypothesis is even more problematic for the factually innocent defendant. The reason is that, in many cases, an innocent person simply knows nothing about the crime.” (Internal quotes and citations omitted.)

Third, prosecutors say they want an alternative theory of the case and say they want the defendant to tell the jury who really did it.  (This is known as the wrong-person defense or the third-party guilt defense.)  However, prosecutors then go to great lengths to prevent defendants from putting on such evidence!  They first mock it as the SODDI defense (“some other dude did it”) and then erect numerous legal barriers to hide the defendant’s evidence from the jury. 

In Wisconsin, for example, even when defendants have the third party’s DNA on the murder weapon, prosecutors have still been able to stop them from presenting such evidence to the jury.  I wrote all about that case and the difficulty of presenting third-party guilt evidence in this article.  And this excellent article also demonstrates how prosecutors go to tremendous lengths to suppress evidence of third party guilt.  It also has a state-by-state summary in the appendix.  Florida, the state in which the Markel murder case was tried, is, like Wisconsin, a so-called “direct connection” state.  This sounds innocent enough, but the standard makes it incredibly difficult to present such evidence, thus spelling doom for the defense. 

Finally, Lat predicted the outcome of the Markel murder trial.  “A criminal jury trial is a very unpredictable thing. But for what it’s worth, my prediction is that yes, both defendants will get convicted.”  As it turns out, his prediction wasn’t worth much.  The girlfriend, the alleged go-between, wasn’t convicted.  The jury was hung.  I look forward to updates from Over My Dead Body to see if her defense lawyer was able to present evidence of actual innocence, or instead merely hammered away at the burden of proof.  

As for Lat, the former prosecutor, his prediction of a guilty verdict could eventually come true.  Having failed to convict the girlfriend the first time, the prosecutor intends to take a second kick at the cat.