Jury Trials—Is It Witch Science?

Many of the Americans living in the Southwest are, of course, of Mexican descent. Though many families have lived in the United States for several generations, there is a continual influx of new immigrants from Mexico. As a result, many cultural phenomena brought from Mexico continue to thrive in the barrios (neighborhoods) of the Southwest. This is as true in San Antonio as anywhere else in the region. These cultural phe­nomena affect the food we eat, the music we listen to, the customs we adhere to, and, in their most important manifestation, what we believe.

The curanderos, for example, are believed to possess magical powers and special knowledge of plants and herbs, with the power to do great good or great evil according to the way in which they are mixed or prepared. This tradition is as much alive in San Antonio as in the villages of Mexico whence it sprang.

The attitude toward curanderos is a curious mixture of awe, fear, and ambivalence. The “hip” educated side of us knows intellectually that they do not possess magical powers, but our hearts simultaneously fear that perhaps our heads just don’t understand.

We’ve all heard the stories from the old folks of how some unbeliever such as ourselves has been cursed and lived to rue the error of his ways, brought under the power of a voodoo-like spell.

I once had a robbery by assault with firearms case (aggravated robbery now) in which a curandera played a very important role—as a juror. She had come to court dressed completely in black and wearing a shawl over her head, and we had all simply assumed her to be a widow, wearing black to honor the memory of her deceased husband. That practice still exists among some families of Mexican descent, and women dressed like she was are still a fairly common sight around here.

We later learned that she was wearing black as part of a spell she was in the process of casting. However, the jurors didn’t know that until they were in the jury room, and neither the judge nor the lawyers became aware of that fact until after the jury had been dismissed (without a verdict having been reached) as being hopelessly deadlocked.

At that time, we learned that the jury had very quickly found itself divided 11–1 in favor of conviction, and that the lady in black was the lone holdout for acquittal. So far as the jury could gather, her basis for voting Not Guilty was a combination of her special ability to perceive the truth and the State’s failure to produce the gun with which the robbery had been committed.

Now, a skeptic could be forgiven for concluding that the lady’s ability to perceive the truth was no better than yours or mine, and I won’t comment about that.

What I will tell you is that the State’s inability to produce the gun was legally and logically irrelevant. That an armed robbery had occurred, and that the unfortunate victim had been severely pistol-whipped by the perpetrator of the robbery, had not been contested. The defense was, quite simply, that somebody else had committed the crime and not the defendant on trial. (This is sometimes referred to as the “SODDI” defense—“some other dude did it.”)

The defendant, a young black man without a job, who simply “hung out” on the streets, had been unable to produce a meaningful alibi—such young men never are. Their days are all ill-defined amalgams of time spent on various street corners, in miscellaneous pool halls, and on basketball courts around the neighborhood, and all that time is spent with others very much like themselves.

Typically, they have no idea where they were last Thursday at 4 o’clock in the afternoon, or who they were with. If they could remember, the guys who were with them can’t, and if they can, nobody believes their testimony anyway, because they too are unemployed black youths who just “hang out.”

Our defense had been very straightforwardly based on the defendant’s chin. He had the most unusual chin I have ever seen, in that it was split by a cleft so deep that it actually appeared that he had sustained a serious injury. Although the victim, who had been badly injured, could and should be forgiven by a jury for not remembering every detail of his assailant’s appearance, we thought the defendant’s chin to be so unusual that anyone accosted by him would have mentioned his chin.

The victim had made no mention of his assailant’s chin and couldn’t remember anything memorable about it even when I specifically asked about his assailant’s chin (while the defendant blocked his chin with his hand).

He had nevertheless insisted that the defendant was his assailant, and 11 of the jurors had believed him.

When the twelfth juror explained her “reasoning,” so far as I could tell from talking with the other jurors later, they had broken into three groups. The largest group thought the woman was crazy and there would be no reasoning with her. A couple apparently became about half-convinced that the absence of the handgun was important, and a couple were either concerned that perhaps she did possess special powers to perceive the truth, or that crossing her might end up getting them cursed. Whatever the basis, there could be no question but that jury was hopelessly deadlocked.

The case was tried again and upon essentially the same evidence the second jury was also unable to agree upon a verdict. This time the split was 10–2 for Not Guilty, so the State dismissed the case rather than try it a third time.

This case troubled me at the time I was handling it, and continues to trouble me as I try to interpret what it tells us about our jury system.

After 24 jurors had heard the evidence in the case, 13 thought the defendant was guilty and 11 thought he was not guilty. However, 11 of the 13 who thought he was guilty sat on the first jury, and if only one vote had changed he would have been found guilty. If found guilty, he was facing up to a life sentence. He thus quite literally was one vote away from spending a very long time in the penitentiary, but ended up being freed.

On the other hand, if the first jury had voted 10–2 for acquittal, as the second jury did, the case would probably have been dismissed by the prosecution at that point, and there would have been no second trial.

The defendant, being poor and charged with a very serious offense, was unable to post bail, and thus had been in continuous custody from the time of his arrest until after the second trial. In all, he spent about eight months in custody on an offense that was ultimately dismissed.

Whoever committed this offense richly deserved a long prison sentence. If the defendant was the culprit, he got off very, very lightly, the undeserving beneficiary of a noteworthy chin and an unobservant victim.

On the other hand, if the defendant was in fact innocent, our system held him in confinement for eight months for nothing, and he has been greatly wronged. Moreover, whoever actually committed the offense got away with it.

As a practical matter, once a victim has committed himself to identifying one person as the perpetrator of the offense, there is no way a successful prosecution of anyone else could occur.

What we learn from this case, ultimately, is that our system—like all others—is fallible, and that injustice is bound to occur in any fallible system.

The system became fallible, by the way, in the year 1215. No, not because of the Magna Carta, although that is the year that the English nobility extracted that charter from King John. Rather, it was because of Pope Innocent III’s Fourth Lateran Council, which also occurred that year.

Trials in England, until that time, had been by battle or by ordeal. Knights and nobility would settle their matters in the lists, on the Field of Honor, by the lance.

Lesser folk would be bound and thrown into the lake, to see if they sank; if they did not, they were clearly being rejected by the water, were thus plainly guilty, and were promptly hanged. If they sank, they were accepted by the water and thus plainly innocent, and if they were lucky, they were pulled from the water before they drowned.

There were other trials by ordeal. Some would be required to walk barefoot across a bed of coals, others to grasp a hot poker in their bare hand. In each case, guilt or innocence would be determined by the extent of injury and the rapidity and extent of recovery.

It was also true that the nobility began to use mercenaries (what were then called “champions”) to defend their honor with lance and sword.

What made all this infallible was the participation by priests of the church, who would invoke the presence and judgment of the Almighty in these various proceedings to insure that Right would Prevail and Truth be Upheld. These were the days, you will recall, when second and third sons, being denied all right of inheritance by the law of primogeniture, had to make their ways as best they could, either as knights errant or clergymen.

Occasionally, a clergyman could be found who might be persuaded (upon payment of a proper indulgence) of the justice of one’s cause. Perhaps, despite appearances to the contrary, the water did accept one; mayhap, the scarring from the poker, severe to the untrained eye, reflected God’s judgment of innocence to the eye made more perceptive by study of things sacred and the secret beneficence of the purse.

Enter Innocent III, with his narrow-minded Continental point of view. Thenceforth, he decreed following the Fourth Lateran Council, priests of the church shall not participate in those godless rituals known only to the barbarous English and called trials by battle and by ordeal.

The English—and we, the progeny of their legal system—have been fallible ever since.

Judge Wayne Patrick Priest
Judge Wayne Patrick Priest
Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

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