Tuesday, October 26, 2010

SCOTUS Reads The Skeptical Juror

Working with the resident jailhouse attorney, Byron Case petitioned the U.S. Supreme Court to issue a writ of certiorari. Recall from a previous post that certiorari is Latin (of course) meaning "to be more fully informed." Meanings change over time, but currently, here in the United States, a writ of certiorari is an instruction from a higher court to a lower court to hear a case. Typically it means the Supreme Court instructs a lower court to hear a case.

The issue in Byron Case's case was the admissability of a tacit admission used as evidence against him. Amidst a long haranging dithyramb during a surrepticiously recorded phone call, an embittered ex-girlfriend accused Byron of killing a common friend. Byron did not explicitly deny the charge, and in Missouri that counts as a tacit admission of guilt. The so-called tacit admission was instrumental in Byron's conviction and his resulting life sentence.

(Byron claimed he can't even remember the late night call, explaining he had strep throat and a high fever at the time. He introduced a medical report from the next day to confirm his point. An acoustic analysis of the phone call I conducted for the book shows that the transcript was falsified and the volume was manipulated on the girlfriend's side of the call.)

I addressed the issue of tacit admission in The Skeptical Juror and The Trial of Byron Case. Without my knowledge, Bryon included the segment from my book in his petition to the Supreme Court. While it's unlikely any of the nine justices read it, it's possible one of the clerks may have. Hence my claim that SCOTUS reads The Skeptical Juror.

I include the purloined segment below.
With respect to the tape, the appeals court agreed with the prosecution that the conversation constituted a tacit admission. The tape was therefore not excluded by hearsay rules.
A defendant makes a tacit admission of guilt when the defendant fails to respond to or significantly acquiesces in the import of an inculpatory statement by making an equivocal, ambivalent, or evasive response when the inculpatory statement was made in the presence and hearing of the accused, and was sufficiently direct, as would naturally call for a reply.
If someone asked you why you felt the need to kill John Kennedy, and you simply stared at them, that would clearly fit within Missouri’s definition of a tacit admission. You failed to respond. 
If instead of remaining silent you told the person to “Shut the fuck up,” that too would be a tacit admission. That exact response has already been judged as a tacit admission by the State of Missouri. “We shouldn’t talk about this” would also be a tacit admission, since that’s what Byron allegedly said. “Maybe I did, maybe I didn’t” would certainly be a tacit admission, since it’s equivocal. 
It’s difficult to determine how eloquent one might have to be to avoid tacitly admitting to the assassination. I’m guessing “Have a nice day” might be insufficient, since it’s ambivalent. “Bite me” is not much different than “Shut the fuck up.” “I don’t know what you’re talking about” might be ruled evasive, as could “I’ve got to be getting home.” 
I suggest something along the line of: “I did not kill John Kennedy, nor did I have any agent act in my stead, nor did I have any role whatsoever in his assassination, either before or afterwards, nor do I know of anyone who actually participated in or contemplated his assassination.” Think quickly though. If you try something such as “I’ll need to check with my attorney before responding to your statement,” that will almost certainly qualify as tacit admission in Missouri.
Byron and his jailhouse attorney wrestled with including the profane language as is or masking it. They decided to include it exactly as I wrote it. I included the profane language because it was in the court decision that established tacit admissions as case law in Missouri.

By comparison, the state of Texas refuses to this day to put the complete text of Cameron Todd Willingham's last words online, because Willingham used profane language just before they killed him. I find it sadly comical that the same state that straps its citizens to a gurney and pumps them full of lethal chemicals suddenly gets the vapors when it comes to printing coarse language.

Antonin Scalia's decision to consider Hank Skinner's petition for a writ of certiorari resulted in a stay of Hank's execution just 45 minutes before Texas pumped him full of chemicals. That's rare. The Supreme Court dismisses 99% of the petitions without comment.

In Byron's case, the Supreme Court dismissed his petition without comment on the first day of their new session. Another door closed on a wrongfully convicted man.

Byron and his jailhouse attorney have formally asked the Supreme Court to reconsider their rejection. The chance for success is slim, but when you are serving life for a crime you did not commit, you have to take the few chances available to you. Hopefully, the nine justices will someday soon indeed read The Skeptical Juror.