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Reasonable bias (continued)

Still, the Cornell study found one more factor decisive in predicting jury outcomes: credibility of police witnesses. "Variation in juror beliefs about police credibility is a key determinant of verdict preference," the report concludes. That finding, it seems, has been borne out in Suffolk County courtrooms. Experts warn against reading too much into individual juror comments to reporters after trials, which can be non-representative and self-justifying. Nevertheless, jurors in Boston murder acquittals have repeatedly criticized the investigations. "The DA had five years, and all he could come up with is a bunch of pictures and some experts?" a Kyle Bryant juror said to the Boston Herald. "We just couldnít believe anything that was said about anybody, including the police," a James Bush juror told the Boston Globe.

The Bush jury heard Detective Keeler actually admit to lying in his reports, as well as to failing to collect important physical evidence at the crime scene ó and then jurors were asked to believe his version of how he obtained eyewitness identifications. The Nelson-Cousin trials hinged in part on whether elements of the case came to police independently, as they claimed, or whether the police obtained them in pursuit of evidence against Cousin, as the defense suggested. They were also asked to believe a key witness whom the police let off without jail time, despite the fact that the witness admitted to stealing the car, helping to plan, and acting as lookout for the shooting that resulted in the murder of a 10-year-old girl.

MANY SIMILARLY flawed cases, investigated by the same people using the same methods, went to trial before 2004, when the conviction rate was much higher (see "Blind Spots," News and Features, April 23, 2004). Veteran Boston defense attorney Robert Sheketoff suspects that post-9/11 police-hero worship might have contributed to prosecutorsí success then. Wrongful-conviction revelations and other police shenanigans appear to be responsible for last yearís dramatic reversal.

Although Conley admirably pursued those wrongful-conviction cases, he refuses to accept that they present legitimate concerns for Boston residents serving as jurors. In fact, he seems angry that his office gets tainted by the stories. "The key factor has been lost or distorted by the media ó most of the cases were many, many years old," he says. "It wasnít a wrongful conviction now, it was a conviction when our methods were not as good as they are now."

Cases being tried now were mostly investigated between 1999 and 2002. But Keeler, for instance, was not removed from the homicide unit until early 2004. The departmentís useless fingerprint lab was shut down only last summer ó in fact, in a major gaffe, the BPD assigned critical work to that lab last July during the investigation of the police shooting of Bert Bowen, long after the department knew the lab was grossly untrained and unqualified. The badly flawed eyewitness-identification techniques remained standard practice until last fall. Detectives are still resisting taping entire interrogations, preferring to tape only the parts after the suspect or witness starts telling the story they want to hear.

But in Conleyís view, thee jurors who acquitted James Bush in November of killing three-year-old Malik Andrade-Percival were corrupted by the "CSI effect," an increasingly popular prosecutorsí theory: that popular television shows have convinced the public to hold unreasonable expectations of physical forensic evidence at trials. "It is not uncommon for a prosecutor to say in their opening argument, ĎNow this is not CSI ó itís real life,í " says Sheketoff.

To Susan Broome, a Newton consultant to trial attorneys, the "CSI effect" sounds like healthy skepticism. Itís also not a new complaint ó the supposed effect has been blamed on Law & Order, on NYPD Blue before that, and probably on Perry Mason once upon a time. In fact, it was mouthed by none other than now-reassigned BPD detective Daniel Keeler in the 2001 ABC News "Boston 24/7" documentary. "Everybody sees these shows where crimes are solved within an hour," Keeler said. "The bar is so high for us today that [jurors] want a videotape of who did it."

That sounds compelling, but it has never been proved in any way. Besides, one would expect this alleged mass-media phenomenon to affect other jurisdictions as much as Boston, but there is no evidence of that either. Some defense attorneys note the opposite effect: the shows invariably depict honest, ethical, thorough police and forensics professionals, and witnesses with perfect memories who tell the truth. Even when they do engage in questionable behavior, itís all to serve the interests of justice: if Lennie Briscoe or Andy Sipowicz lies on the witness stand or pressures a witness, we can be sure itís only to convict someone who is undoubtedly guilty.

THE COMPELLING question is whether the skepticism weíre seeing in Boston reflects a reasonable understanding of reality that belongs in jury deliberation, or unreasonable bias that should be weeded out during jury selection. "Where does a healthy skepticism become total distrust?" asks consultant Broome. "When it becomes total distrust, then it becomes almost impossible to prove a case."

Conley seems disposed toward the latter view, given that he is seeking enhanced powers to question and challenge jurors in the wake of the Persad case. Others disagree. "The jury is supposed to be representative of the community from which itís drawn, so thatís the sentiment that should be brought into the jury room," argues Samuel Sommers, psychology professor at Tufts University and co-author of a 2003 Chicago-Kent Law Review article titled "How Much Do We Really Know About Race and Juries?"

Conley wants to start by going after those with criminal histories, which would inevitably target more black than white residents ó at least four of the five he blamed for the Nelson acquittal are African-American, and statistically African-Americans are more than twice as likely as Caucasians to be arrested. Conley insists that this proposal has no racial undertones. "Our desire to do this has nothing to do with race," he says.

But of course it would have a racial effect, say Munsterman and others. And the effect on jury decisions is merely speculative. Felons are already barred from jury service for seven years, so the crimes Conley would ferret out of juries would be either long in the past or misdemeanors, and there is no evidence that petty criminals are inherently biased against law enforcement.

Will Conley just as enthusiastically rout out other varieties of law-enforcement-related jury bias, such as a jurorís history of being a crime victim? Or of having a police officer in the family? He hasnít said so. As local defense attorneys point out, they often petition ó unsuccessfully ó for enhanced ability to question jurors for bias, but Conleyís prosecutors seldom do, if ever. Until now.

Thatís because, to most observers from the defense side, Suffolk County judges are much more likely to remove a potential juror who shows bias against law enforcement than one who shows bias in the opposite direction. Consider a recently reversed second-degree-murder conviction. In the 1990 trial of Mac Hudson, a black Roxbury man, a potential juror told the judge that he didnít like black people. When the judge asked if he could put his bias aside and try the case on the facts, the man replied, "Iíll give it a shot," according to Sheketoff, Hudsonís appellate attorney. In an unpublished decision, the appeals court found that the man should not have been allowed on the jury, and ordered a retrial. If Suffolk County DAs were satisfied with that jurorís vote for 14 years, how can Conley start whining about biased jurors now?

David S. Bernstein can be reached at dbernstein@phx.com

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Issue Date: January 7 - 13, 2005
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