The Compliant Juror: Part III

In Part I of this series, I described an experiment in which a subject was willing to apply lethal electric shocks to a fellow human simply because the subject was instructed to do so by the person conducting the experiment.

In Part II of this series, I explained that the subject's response to authority was not unique, that two-thirds of the subjects in that particular experiment refused to disobey the authority figure even when instructed to apply what the subjects believed to be potentially deadly shocks.

I challenged to you, the readers, to decide whether you would have disobeyed the authority figure. I suggested that our natural reluctance to defy authority might explain the behavior of compliant juries. I promised to buttress that suggestion in a separate post. I'll attempt to do so now.

Stanley Milgram conducted 18 variations of the experiment I described. Many of the variants might be instructive to anyone attempting to understand jury behavior. I'll limit myself at the moment to Experiment 18. In that experiment, an additional confederate was introduced. I call him the Executioner, since he was the person who executed the sentence. He was the one who would apply the shock should the Learner fail to properly answer the question posed by the actual subject, the Teacher. The Teacher now had only to read the questions, announce whether the Learner responded correctly or incorrectly, and announce the shock level that was to be applied if the answer was incorrect.

The Teacher was the only subject in the experiment. The Experimenter, the Learner, and now the Executioner all understood that the Learner was not being shocked, that the experiment had to do with response to authority rather than the effect of negative feedback on learning.

Clearly, a juror's role is more similar to the subject in Experiment 18 than to the subject in Experiment 5, discussed previously.

The juror will not escort the convicted defendant from the courtroom. 

The juror will not impose the sentence. Except in capital murder cases, jurors usually are not allowed to know beforehand what the possible or likely sentence would be. Sentencing normally takes place after the jurors are dismissed. The jurors frequently never know the consequence of their decision. 

In capital murder cases, the jurors will not administer the lethal injection.

Experiment 18 was designed to study the impact of separating the subject from the final punishment. Here's how Milgram described that variation.

To examine this phenomenon within the laboratory, a variation was carried out in which the act of shocking the victim was removed from the naive subject and placed in the hand of another participant (a confederate). The naive subject performs the subsidiary acts which, through contributing to the over-all progress of the experiment, remove him from the actual act of depressing the lever on the shock generator. ... 

Any competent manager of a destructive bureaucratic system can arrange his personnel so that only the most callous and obtuse are directly involved in the violence. The greater part of the personnel can consist of men and women who, by virtue of their distance from the actual acts of brutality, will feel doubly absolved from responsibility. First, legitimate authority has given full warrant for their actions. Second, they have not themselves committed brutal physical acts.

For comparison, recall that 26 of 40 subjects in Experiment 5 refused to defy authority; 26 of 40 subjects actually applied (or thought they applied) 450 volts to a person who had long since gone quiet after screaming in pain and after complaining of heart problems. The subjects did so only because they were told by a person in a lab coat that such shocks were necessary to complete a word comparison test.

In Experiment 18, 37 of 40 subjects continued to participate in the test to the very end. They continued to read the questions, to announce whether the answers were right or wrong, and continued to identify the level of shock that was to be applied. They did everything except throw the switch.

The only difference between Experiment 5 and Experiment 18 was who threw the switch. If the real test subject, the Teacher, had to throw the switch, the obedience rate was 65%. If the real test subject did not have to throw the switch, the obedience rate was 92.5%.

Assuming you believed you would have defied the Experimenter if participating in Experiment 5, do you believe you would have defied the Experimenter if participating in Experimenter 18? Would you have been among the 7.5% who did not, or are you simply suffering from Lake Wobegon syndrome?

If I discomfort you near Christmas (or Hanukkah or Kwanzaa or Festivus for the rest of us), consider it a cautionary gift. Alternatively, consider me the Gingrich who stole Christmas.

The Gingrich Who Stole Christmas

You can add Newt Gingrich to the list of famous people who will not be receiving a Christmas card from me.

I was somewhat taken aback when during Friday's Fox News debate Newt went postal on the judiciary. Given that I am often critical of our judicial branch, it might come as a surprise to you that I vehemently disagree with him regarding the judiciary's final judgment on what is and is not constitutional. As president, he would refuse to recognize some Supreme Court rulings. He would haul some federal judges before Congress if they should rule in some fashion he (or someone) decided was outrageous. He would force their appearance before Congress via federal marshals if necessary.

Suddenly, we wouldn't be electing just a president. We would be electing someone who proclaimed at least some control over the judicial and legislative branches, as well as absolute control over the executive branch. He would take an oath to defend the Constitution but he would have his fingers crossed. He would only defend those portions he deemed worthy. If a wayward judge were to rule unreasonably, Chief Executive Gingrich would have him hauled before Congress.

None of the three branches of government is doing a praiseworthy job of protecting the rights granted to us by the Constitution. Of the three branches, however, the courts are doing the least bad job.

During the debate and elsewhere, the Newtster has given us some sense of what he considers outrageous. He seems really bothered about the Court ruling on prayer and the pledge of allegiance. He's unhappy with abortion rulings. He doesn't like Cooper v. Aaron, the ruling that forced integration of public schools in Arkansas (and everywhere else). He seems to be fretting in advance over gay rights rulings.

I suspect the Newtmeister would not be pleased of the Supremes ruled against Obamacare and President Obama simply decided to ignore them. I suspect Newtly would have been unhappy if Bill Clinton would have ignore the Supremes and handed the keys to the White House to Al Gore instead of George Bush.

It cuts both ways. If the President can choose which Supreme Court decisions he will enforce, and which he will ignore, then we can dispose of the Court. We will be at the mercy of whichever party controls the White House. The President will be unchecked and unbalanced by judges.

It's a pretty sad lot we have to choose from for President of these here United States. I'll offer my quick summary and then step down from my pedestal.

Gingrich -- the man who would be king

Obama -- a walking, talking credit card that we can no longer afford

Paul -- putting Amish practices at the forefront of our national security

Perry -- allowing innocents to be put to the needle

Bachmann -- an uncylopeadia

My ...

Oh ...

My.

The Compliant Juror: Part II

In my previous post I described an experiment in which a subject, the Teacher, repeatedly applied a seemingly lethal electric shock to a person, the Learner, who was pleading to be set free. The Teacher administered the shocks only because the Learner failed to properly match a pair of words previously recited from a list. Even though the Teacher was concerned that the shocks may have caused the Learner to suffer a heart attack, the Teacher continued to administer the shocks simply because the Experimenter dispassionately insisted that the experiment must continue.

The experiment was one of a series of 19 similar experiments conducted in the early 1960s by Stanley Milgram and documented in his book Obedience to Authority. The experiment, as you may suspect, really had nothing to do with the effect of negative reinforcement on learning. The experiment had to do with people's response to authority.

The matching word test was but a ruse, a plausible excuse for asking a subject to apply a shock to another person.

The Learner was an actor, always the same actor. He never received any shock. He only acted as if he had. The drawing of lots to determine who would be the Teacher and who would be the Learner was rigged. The Learner / Actor provided the same verbal responses to each of the 40 subjects tested in this particular experiment. The Learner's responses varied only based on the voltage, as explained below:

75 volts: Ugh! 

90 volts: Ugh! 

105 volts: Ugh! (louder) 

120 volts: Ugh! Hey, this really hurts. 

135 volts: Ugh!! 

150 volts: Ugh!!! Experimenter! That's all. Get me out of here. I told you I had heart trouble. My heart's starting to bother me now. Get me out of here, please. My heart's starting to bother me. I refuse to go on. Let me out. 

165 volts: Ugh! Let me out! (shouting) 

180 volts: Ugh! I can't stand the pain. Let me out of here! (shouting) 

195 volts: Ugh! Let me out of here. Let me out of here. My heart's bothering me. Let me out of here. You have no right to keep me here! Let me out! Let me out of here! Let me out. Let me out of here! My heart's bothering me. Let me out! Let me out! 

210 volts: Ugh!!! Experimenter! Get me out of here. I've had enough. I won't be in the experiment any more. 

225 volts: Ugh! 

240 volts: Ugh! 

255 volts: Ugh! Get me out of here. 

270 volts: (Agonized scream.) Let me out of here. Let me out of here. Let me out of here. Let me out. Do you hear? Let me out of here. 

285 volts: (Agonized scream.) 

300 volts: (Agonized scream.) I absolutely refuse to answer any more. Get me out of here. You can't hold me here. Get me out. Get me out of here. 

315 volts: (Intensely agonized scream.) I told you I refuse to answer. I'm no longer part of this experiment. 

330 volts: (Intense and prolonged agonized scream.) Let me out of here. Let me out of here. My heart's bothering me. Let me out, I tell you. (Hysterically) Let me out of here. Let me out of here. You have no right to hold me here. Let me out! Let me out! Let me out of here! Let me out! Let me out!

Beyond 330 volts, the Learner / Actor gave no response. He left the impression he was unconscious, possibly dead.

At the end of the last post, I asked you whether you would have administered the potentially lethal shocks. I suspect you each told yourself that you would never do such a thing. I then asked you if you were sure. I suspect most or all of you were positive you would never do such a thing.

I suggest now that two-thirds of you were wrong. I base my never-to-be-tested prediction based on the results of Milgram's experiments.

As part of his study, Milgram (or his associates) briefed 39 psychiatrists, 31 college students, and 40 middle-class adults about the nature of his experiments. Without revealing the results, he asked the 110 people the maximum level of shock they would have provided. The responses varied only slightly among the groups. The average maximum shock level predicted by the respondents was 135 volts. Only 8 people believed they would have applied more than 200 volts. No one believed they would have applied any shock higher than 300 volts.

Milgram's experiments indicate two-thirds of those people were wrong. Twenty-six of the forty subjects in the specific experiment described applied 450 volts. Milgram described these 26 people as obedient. Under Milgram's rigid standard, even the person that applied 375 volts but refused to apply more was classified as disobedient to authority.

Perhaps I'm applying too much significance to Milgram's experiments. Perhaps his subjects did not represent a reasonable cross section of humanity. Milgram anticipated my concern and addressed the issue in his book.

Moreover, when the experiments were repeated in Princeton, Munich, Rome, South Africa, and Australia, each using somewhat different methods of recruitment and subject populations having characteristics different from those of our subjects, the level of obedience was invariably somewhat higher than found in the investigation reported in this book. Thus Mantell, in Munich, found 85 percent of his subjects obedient.

Since he published his book, his experiments have continued to be replicated. From Wikipedia, I offer the following:

Another partial replication of the Milgram experiment was conducted by Jerry M. Burger in 2006 and broadcast on the Primetime series Basic Instincts. Burger noted that, "current standards for the ethical treatment of participants clearly place Milgram’s studies out of bounds." In 2009 Burger was able to receive approval from the institutional review board by modifying several of the experimental protocols. Burger found obedience rates virtually identical to what Milgram found in 1961–1962, even while meeting current ethical regulations of informing participants. In addition, half the replication participants were female, and their rate of obedience was virtually identical to that of the male participants. Burger also included a condition in which participants first saw another participant refuse to continue. However, participants in this condition obeyed at the same rate as participants in the base condition. [65% obedience]

The experiment was again repeated as part of the BBC documentary How Violent Are You? first shown in May 2009 as part of the long running Horizon series. Of the 12 participants, only 3 refused to continue to the end of the experiment. [75% obedience] 

In the 2010 French documentary, Le Jeu de la Mort (The Game of Death), researchers recreated the Milgram experiment with an added critique of reality television by presenting the scenario as a game show pilot. Volunteers were given €40 and told they would not win any money from the game, as this was only a trial. Only 16 of 80 "contestants" (teachers) chose to end the game before delivering the highest voltage punishment. [80% obedience]

Perhaps all of you who now consider whether or not you would have obeyed are among the statistical few who would disobey authority, just as all the children in Lake Wobegon are above average. More likely, most of you simply suffer from the standard human condition known as Illusory Superiority. Once again from Wikipedia:

Illusory superiority is a cognitive bias that causes people to overestimate their positive qualities and abilities and to underestimate their negative qualities, relative to others. This is evident in a variety of areas including intelligence, performance on tasks or tests, and the possession of desirable characteristics or personality traits. It is one of many positive illusions relating to the self, and is a phenomenon studied in social psychology. 

Illusory superiority is often referred to as the above average effect. Other terms include superiority bias, leniency error, sense of relative superiority, the primus inter pares effect, and the Lake Wobegon effect (named after Garrison Keillor's fictional town where "all the children are above average").

Hopefully, you find this discussion regarding blind obedience to authority to be both disturbing and humbling.

In my next post, I will attempt to extend this discussion more directly to juries. Comments are now open and welcome.

The Compliant Juror: Part I

The opposite of a skeptical juror is a compliant juror.

I suggest most jurors are compliant because most people are loath to challenge authority. While the obvious authority figure in the courtroom is the judge, and while the judge attempts to be unbiased, the jurors believe they are answering to a higher authority. I'm not talking about a supreme being. I'm talking about the citizenry and the common good.

Note that the Court usually presents the case as The People versus Joe Doaks. The prosecutor then quickly informs the jurors that he represents The People, or The State, or The People of The State. He is but a public servant that wishes only to see justice served. He will be first in his opening statement and he will be last in his closing arguments. He will sit closest to the jury. He will be impeccably dressed. His hair will be well coiffed.

If you believe that such minor trappings could not instill such an air of authority that jurors would be unwilling to challenge it, I suggest you are wrong. As evidence I point to a series of experiments conducted in the early 1960s. During those tests, a lab coat and the title of Experimenter constituted sufficient authority that test subjects were unwilling to defy authority. Test subjects were unwilling to defy authority even when instructed to apply lethal electric shocks to an innocent fellow subject.

I'll describe the test arrangement and I'll provide the transcript from one of many sessions. Then I'll allow you to ponder whether the experiment has any relevance to juror compliance.

Subjects were tested two at a time to determine if negative feedback in the form of electric shocks could improve learning. The subjects were typically postal clerks, high school teachers, salesmen, engineers, and laborers. By lot, one subject was determined to the Teacher and the other was determined to be the Learner.

Each test was administered by a stern 31-year-old high-school teacher of biology. He wore a gray technician's coat. He provided a standard explanation of the test to each Teacher / Learner pair. Below, I present a somewhat abridged transcript of the standard explanation.

Psychologists have developed several theories to explain how people learn various types of material ... One theory is that people learn things correctly whenever they get punished for making a mistake. ... But actually, we know very little about the effect of punishment on learning, because almost no truly scientific studies have been made of it in human beings.

For instance, we don't know how much punishment is best for learning -- and we don't know how much difference it makes as to who is giving the punishment, whether an adult learns best from a younger or an older person than himself -- or many things of that sort.

So in this study we are bringing together a number of adults of different occupations and ages. And we're asking some of them to be teachers and some of them to be learners.

The learning test consisted of remembering paired words. The Teacher would begin by reading a long list of paired words, such as:

blue box
nice day
wild duck
green ink

The Teacher would then present one word of the word pair and four other words, only one of which matched, thus:

blue: sky, ink, box, lamp

The Learner, who would be sitting in a chair in an adjacent but isolated room, would communicate his answer by pressing one of four switches in front of him, which lit up one of four lights on the Teacher's electrical console. If the Learner answered incorrectly, he would be given an electrical shock. Each time he answered incorrectly, the electrical voltage would be increased by 15 volts.

The Teacher and the Learner were led to the Learner's room where the Learner was strapped into an "electric chair" apparatus. The Experimenter explained that the straps were to prevent excessive movement while the Learner was being shocked. An electrode was attached to the Learner's wrist. The experimenter assured the subjects that the shocks would cause no permanent damage but cautioned that the shocks could be painful.

The Experimenter and Teacher returned to the Teacher's room. From that room, the Teacher could hear but could not see the Learner. Sitting on the Teacher's table was a large electrical console. I show that console in the three images below.

The console included 30 lever switches arranged horizontally. Each switch was labeled with a voltage ranging from 15 to 450 volts, in 15 volt increments. The switches were labeled in groups of four as:

Slight Shock
Moderate Shock
Strong Shock
Very Strong Shock
Intense Shock
Extreme Intensity Shock
Danger: Severe Shock

The last two switches were simply labeled as XXX.

The Experimenter instructed the Teacher to conduct the test in the following manner. I paraphrase:

After reading all the word pairs to the Learner, read the test words to the Leaner one at a time. Read the test word, read the four possible matching words, and ask for an answer. If the Learner answers correctly according to the light on the Teacher's console, inform the Learner that he was correct, then move on to the next word. If the Learner answers incorrectly, inform the Learner that he was incorrect, provide the correct answer, inform him of the next voltage in the sequence he is about to receive, and toggle the appropriate switch.

Okay, that's the test set up. The transcript below is from one of the tests just described. It begins as the Teacher is about to apply a 195 volt shock for a wrong answer. The Teacher has been growing increasingly uncomfortable with the test and has become fearful for the Learner's life.

The transcript that follows is true. Keep in mind that nothing is forcing the Teacher to behave as he does other than his unwillingness to defy an authority figure.

T: I can't stand it. I'm not going to kill that man in there. You hear him hollering?

E: As I told you before, the shocks may be painful, but --

T: But he's hollering. He can't stand it. What's going to happen to him?

E: The experiment requires that you continue, Teacher.

T: Aaah, but, uh, I'm not going to get that man sick in there. Know what I mean?

E: Whether the Learner likes it or not, we must go on, through all the word pairs.

T: I refuse to take that responsibility. He's in there hollering!

E: It's absolutely essential that you continue, Teacher.

T: There's too many [unused questions] left here. There's too many left here. I mean, Geez, if he gets them wrong, there's too many of them left. I mean who's going to take the responsibility if anything happens to that gentleman?

E: I'm responsible for anything that happens to him. Continue, please.

T: All right.

[Teacher continues with list of words.]

T: The next one's Slow: walk, truck, dance, music. Answer, please.

[Learner signals his answer.]

T: Wrong. A hundred and ninety-five volts. Dance.

[Learner screams.]

L: Let me out of here. My heart's bothering me.

[Teacher looks at the Experimenter.]

E: Continue, please.

L: [Screaming] Let me out of here. You have no right to keep me here. Let me out of here. Let me out.  My heart's bothering me. Let me out!

[Teacher shakes his head and pats the table nervously.]

T: You see. He's hollering. Hear that? Gee, I don't know.

E: The experiment requires --

T: I know it does, sir, but I mean -- huh! He don't know what he's getting in for. He's up to 195 volts!

[Teacher continues to give shocks through 210, 225, 240, 255, and 270 volts. The Teacher runs out of word-pair questions. He is obviously relieved that it's over, only to be surprised that it is not.]

E: You'll have to back to the beginning of that page and go through them again until he's learned them all correctly.

T: Aw, no. I'm not going to kill that man. You mean I've got to keep going up with the scale? No, sir. He's hollering. I'm not going to give him 450 volts.

E: The experiment requires that you go on.

T: I know it does, but that man is hollering in there, sir.

E: As I said before, although the shocks may be painful --

T: Awwww. He, he, he's yelling in there, sir.

E: Start with Blue, please, at the top of the page. Continue please, Teacher. Just go ahead.

[Teacher concentrates intently on the list of word in front of him, as if to shut everything else out.]

T: Blue: boy, girl, grass, hat.

[Learner signals his answer.]

T: Correct. Night: day, sky, job, chair.

[Learner signals his answer.]

T: Wrong. The answer is Day. Two hundred and eight-five volts.

[Learner screams.]

E: Continue, please.

T: Fat: man, lady, tub, neck. Answer, please.

[Learner signals his answer.]

T: Wrong. The answer is Neck. Three hundred volts.

[Learner screams.]

L: I absolutely refuse to answer any more. [Learner is shouting.] Let me out of here. You can't hold me here. Get me out. Bet me out of here.

E: Continue. The next word is Green, please.

T: Green: grass, hat, ink, apple.

[Silence.]

T: I don't think he is going to answer.

E: If the Learner doesn't answer in a reasonable time, about four or five seconds, consider the answer wrong. And follow the same procedures you have been doing for wrong answers. Say "Wrong." Tell him the number of volts. Give him the punishment. Read him the correct answer. Continue, please.

T: Green: grass, hat, ink, apple. Answer, please.

[Silence.]

E: Go on with the procedure, please, Teacher.

T: Three hundred and fifteen volts. The answer is Ink.

[Learner screams.]

T: Next one --

L: I absolutely refuse to answer.

T: You got to. You get a shock if you don't answer.

[Teacher continues asking questions. Learner refuses to answer. Teacher continues to shock Learner with increasingly powerful voltage. Eventually, Learner fails to even grunt or groan. At 375 volts, Teacher stands up.]

T: I think something's happened to that fellow in there. I don't get no answer. He was hollering at less voltage. Can't you check in and see if he's all right, please?

E: Not once we've started. Please continue, Teacher.

[Teacher sits back down and sighs deeply.]

T: Cool: day, shade, water, paint. Answer, please. Are you all right in there? Are you all right?

E: Please continue, Teacher. Continue, please.

[Teacher applies the shock. No response comes from the other room.]

T: Something's happened to that man in there. Next one. Low: dollar, necklace, moon, paint. Something's happened to that man in there. You better check on him, sir. He won't answer or nothing.

E: Continue. Go on, please.

T: You accept all responsibility?

E: The responsibility is all mine. Correct. Please go on.

[Teacher returns to his list. He runs through the words as rapidly as he can read them, working his way up to and including 450 volts. No sound comes from the other room.]

T: That's that.

E: Continue using the 450 volt switch for each wrong answer. Continue please.

T: But I don't get anything!

E: Please continue. The next word is White.

T: Don't you think you should look in on him, please?

E: Not once we've started the experiment.

T: But what if something has happened to the man?

E: The experiment requires that you continue. Go on please.

T: Don't the man's health mean anything?

E: Whether the Learner likes it or not --

T: What if he's dead in there? I mean, he told me he can't stand the shock, sir. I don't mean to be rude, but I think you should look in on him. All you have to do is look in on him. All you have to do is look in the door. I don't get no answer, no noise. Something might have happened to the gentleman in there sir.

E: We must continue. Go on, please.

T: You mean keep giving him what? Four-hundred fifty volts, what he's got now?

E: That's correct. Continue. The next word is White.

[Teacher reads through the word pairs at a furious pace. The Learner does not respond. Each time, Teacher applies a 450 volt shock.]

T: White: cloud, horse, rock, house. Answer, please. The answer is Horse. Four hundred and fifty volts. Next word. Bag: paint, music, clown, girl. The answer is Paint. Four-hundred and fifty volts. Next word is Short: sentence, movie ...

E: Excuse me, Teacher. We'll have to discontinue the experiment.

And that's it. I liked it particularly when the Learner told the Experimenter: "I don't mean to be rude ..."

It actually happened as I have just described it to you. You now get to think about three not-so-simple questions.

Question First: Is this test in any way relevant to jury compliance, as I suggest?

Question Second: How would you have behaved had you been the Teacher?

Question Third: Are you sure?

The Case of Cesar Fierro: My Analysis

In my previous post, I asked you to consider the case of Cesar Fierro and to deliberate via the comments. I was surprised as I prepared the post at how weak the case against Fierro actually was. An eyewitness and a confession should present a formidable case, and the jury clearly voted unanimously to convict, but I was nonetheless surprised at how lame the State's case was. Still, I tried to present the case as fairly and objectively as I reasonably could.

I wasn't surprised by the pro-defense comments from the Skeptical Readers. I repeat them below.

Andrew Hickey
Just from that evidence, pretty clearly not guilty. Confession made under dubious-at-best circumstances, quite probably with threats to his parents, no physical evidence tying him to the crime scene, and only one witness who sounds like his statement could plausibly have been part of a plea bargain.

The Doormouse
When you say he turned and was shot, do you mean he turned the car or his head? Its hard to shoot someone in the back of the head if they are facing you.

Al
I vote not guilty. Does he have an alibi - yes, based on his landlord's testimony Is the prosecution's witness compromised? Think so, based on his bragging about how the police treated him. What is his motivation for testifying against Fierro anyway? Coerced confession - his mother and father's testimony as to their arrest is convincing and Fierro's mentioning his parent's were innocent in his confession seems telling.

Mike
I would say not guilty: I guess we are spoiled on TV shows where all the suspect interviews are video taped. Hopefully in the future all police interrogations of interviews should be taped so we won't get into this he said/he said problem

Anon
I cannot understand why the Defense did not demand testing on the items of clothing?
No gun,
No car stuck in yard,
No Rancher who they sold the gun to
Confession in question,
Snitch after 5 months since incident,
Don't buy this one.

Airborne Juror
It really should be impossible to sentence someone to death based on a witness with everything to lose followed by a confession which was likely coerced. Your previous post did a lot to highlight the startling problems that exist with police-obtained confessions, and here you present the perfect case to illustrate it. There is no evidence to speak of here that is above manipulation by otherwise interested parties - interested in getting themselves off the hook or interested in closing a case and making numbers on the board. No way, on the evidence presented in your post, that this one should be a conviction.

Insightful comments one and all. I have some observations not mentioned by any of those who commented. I include them below, trying to limit my point of view to that of a juror.

The Eyewitness

I'll review the eyewitness testimony in segments.

Olague revealed that about 2:15 a.m. on February 27, 1979, he and Fierro were together in front of the El Paso Public Library.

Well that sounds innocent enough. However, public libraries are typically not open at 2:15 in the morning. I presume, therefore, the two of them weren't actually interested in literature. I presume also that it wasn't merely coincidental the two of them were there at the same time. Assuming Olague is telling the truth, I would like to know what the two of them had been doing together before and what the two of them planned to do after.

Olague hailed a taxicab to go home. ... Fierro told Olague that after Olague was taken home he would go to his home in Juarez.

Really? How exactly would Fierro go to his home in Juarez? Do they have some sort of international cab service in El Paso? Can the cab carry paying passengers from El Paso to Juarez? Was Fierro planning on taking the cab to the border, walking across the border, then picking up another cab to take him to Juarez?

Olague got in the front seat and Fierro got in the back seat.

Really? That seems unusual as well. Convenient for Olague, but unusual nonetheless.

Olague requested Castanon to take him to 226 Wooldridge where he lived. As they neared the location Olague heard Fierro yell "stop" and as Castanon turned Fierro shot him in the back of the head.

As The Doormouse indicated, it seems hard to shoot someone in the back of the head if they are turning to look at you. The bullet wound, though, was behind the right ear. A juror might conclude that the cab driver was turning his head to the right when Fierro fired. Alternatively, a juror might conclude that the cab driver was looking straight ahead when a passenger in the front seat shot him behind the right ear. In either case, it makes absolutely no sense for Fierro to instruct the driver to stop, then shoot him without giving him an opportunity to stop. That left no one to drive the car.

Not to worry though. Olague was conveniently sitting in the front seat, and Olague responded brilliantly to the surprise shooting, just as Fierro must have known he would. Stay tuned.

Castanon fell into Olague's lap leaving blood on Olague's pants. The taxicab jumped the curb and ran into a yard, but Olague hit the brake and the engine died.

Fierro drove to Modesto Gomez Park. Fierro removed Castanon from the cab and dragged him some distance and then shot Castanon again, and took Castanon's wallet and watch and jacket. Olague stated Fierro used the jacket to wipe up some blood and threw the jacket out along the road they took to Juarez.

Whoa! That seems foolish. You have just shot a cab driver in the head and dumped his body and disposed of a bloody jacket. Still, you have a stolen cab with blood on the seats and you have the murder weapon. You have a passenger with blood on his pants. What one should do at this point is avoid law enforcement officers. I wouldn't expect that one would voluntarily drive a border checkpoint where heavily-armed, extremely-skeptical, law enforcement officers are almost certain to examine your car and ask you pointed questions.

The taxicab which Castanon had been driving was discovered across the international border in Juarez, Mexico, with bloodstains on the front seat and carpet. His jacket was discovered on the grounds of Bowie High School on a road leading from Modesto Gomez Park to Juarez.

I don't know whether or not any of the jurors knew where Bowie High School was in relation to Modesto Gomez Park, but if any of them did they should have realized that specific claim was hogwash. I offer below a map of the area courtesy of my good friends at Google. Bowie High School is not on a road leading from Modesto Gomez Park to Juarez.

It may seem like a minor point, but it cautions me that the State is willing to misrepresent the evidence even if nothing much is at stake. If I don't trust the State to tell me the truth, they are going to have one hell of a time convincing me beyond a reasonable doubt that the defendant is guilty.

He said Fierro had taken a silver watch from Castanon; the watch was never found. He said he and Fierro had sold the murder weapon to a rancher south of Juarez, but neither the rancher nor the gun was ever located.

More interesting is Olague's bloody pair of pants. He told the police that he could lead them to the pants. The police never took him up on his offer. I don't know if the jury was aware of that issue.

[Olague] testified that he and Fierro had been committing robberies together for six or seven months. ... He said that he had committed more than forty burglaries and that the police were aware of them, but that he had been charged with only one offense.

'Nuff said.

During one bizarre moment ... he accused a member of the jury of having purchased as stolen CB radio from him. He said that he had committed more than forty burglaries and that the police were aware of them, but that he had been charged with only one offense.

There is not a single portion of Olague's story that was corroborated. There was not a single portion of his story that made sense. More significantly, Olague demonstrated for the jurors that he would, on a whim, falsely accuse someone of a crime. He claimed one of the jurors fenced a stolen CB radio for him. For some reason, the police did not arrest the juror. Not even the police believed Olague was telling the truth.

The Confession

The commentors were less compelling in their explanation for rejecting Fierro's confession. Imagine if you were born and raised in Texas then called to sit on the jury of The People of Texas versus Cesar Fierro. You would be sitting in the jury box wearing a cowboy hat and cowboy boots while a Texas Ranger swore under oath that they did nothing to extort a confession from the defendant. [I've embellished just a bit.] On the other hand, you have the defendant, who was clearly far from an upstanding citizen, telling you an unlikely story of his parents being beaten and threatened with a cattle prod by the Mexican police to help the El Paso police extract a confession. Such a claim is easy to make but difficult to prove.

How could you decide who was telling the truth? Why would you take the word of low-life who had nothing to lose by lying over the word of several sworn police officers who could lose their job and be jailed for perjuring themselves?

As a skeptical juror, I would not have had to wrestle with such a conundrum. I would have rejected the confession simply because it wasn't recorded. If the police had simply recorded the interrogation and the confession, then there would be no question about what happened. Instead, the police choose to not record the interrogation and confession. As a skeptical juror, I would have deemed the failure to record as destruction of evidence.

If the police destroyed the results of DNA testing and then told me the DNA matched the defendant, I would simply refuse to accept the claim. I would be suspicious of the police behavior, but I would not have to conclude they were liars. If the evidence is not properly preserved, it is untrustworthy. I will not use untrustworthy evidence to send a man to prison, much less to the needle.

A Compliant Jury

The opposite of a skeptical juror is a compliant juror. We'll talk about compliant jurors in the next post.