Mad River Union
EUREKA – The legal meaning of “proof beyond a reasonable doubt” has become a pivot in the Juan Joseph Ferrer murder case, now in its third week of pre-trial deliberations in Humboldt County Superior Court.
With the jury likely to be seated this week, Deputy District Attorney Roger C. Rees and Conflict Counsel Marek I. Reavis are trying to persuade prospective jurors to adopt one or the other’s sharply divergent interpretations of what “reasonable doubt” means in the context of the second degree murder charge against Ferrer, 36, of Arcata.
Rees insists the phrase does not mean “absolute certainty.” Allowance must be made for some doubt, he argues.
Reavis, citing a U.S. Supreme Court case, defines it as “utmost certainty” – there must be very little doubt in jurors’ minds if they return a verdict of guilty. To a layperson – including a juror – the distinctions may sound like tedious hairsplitting. But in the courtroom they can be the source of acute, even fateful misunderstandings.
If found guilty, Ferrer faces a life sentence in the streetside knife slaying of Douglas Anderson-Jordet, 50, also of Arcata, on Nov. 25, 2013. The dead man was unarmed in a donnybrook with Ferrer and two of his friends, allegedly triggered when, in a drunken state, the victim hurled homophobic slurs at the three as they strolled home in early morning.
Ferrer brandished a knife when Anderson-Jordet, reportedly yelling “You fucking faggots!” and “Fuck you and your fat girlfriend!” allegedly struck Ferrer on the side of the head. Ferrer’s companions piled on as Anderson-Jordet dropped to the street under the blows. The defense claims the victim fell on the knife when he lost his balance in the scuffle.
Judge John T. Feeney has informed prospective jurors that all the parties to the fatal encounter had been drinking during the hours immediately before.
In arguing over proof beyond a reasonable doubt, prosecutor Rees and defense counsel Reavis have entered the fray on a long-debated issue in American jurisprudence.
How much doubt is “reasonable?” Just how far is “beyond” in “beyond a reasonable doubt?” What does “beyond” mean in temporal terms?
These interminably vexed issues quickly cropped up last week during voir dire, the state and defense interviews of prospective jurors who are being chosen to serve in Ferrer’s trial.
Reavis touched off the dispute at the outset, arguing that a verdict of guilty against his client would have to be based on the jury’s “utmost certainty” that Ferrer committed murder when he knifed Anderson-Jordet at the corner of 11th and H streets in Arcata, three days before Thanksgiving in 2013.
Prosecutor Rees rebutted in unequivocal terms that jurors should not expect to be certain of exactly what happened that early morning at the corner adjoining the Vintage Avenger resale shop.
Dramatizing his argument with an upfront admission, the deputy district attorney declared flatly to candidate jurors, “I’m not certain about what happened that night. Why? I wasn’t there. You might be a little disappointed if you expect to be certain at the end of the trial about what happened.”
Rees derided the defense idea of “utmost certainty” as nonsense. He cited no case law, but in the words of a 1958 U.S. Supreme Court decision, Speiser v. Randall (California), “There is always in litigation a margin of error, representing error in fact-finding, which both parties must take into account.”
Disputes about the logic and effectiveness of the reasonable-doubt standard are legion, extending from Humboldt County courtrooms to the farthest reaches of the nation’s legal and judicial realm; so much so, that some legal scholars contend it ought to be shelved in perpetuity as vague and as encompassing such a broad spectrum of definitions and interpretations as to render it an empty platitude.
However narrow or expansive the interpretations Rees and Reavis employ to sway prospective jurors, in practical terms counsel and jury alike must comply with California 220, the state’s own definition of the reasonable-doubt standard.
Judge Feeney ruled that both sides were free to offer their conflicting interpretations, but he read aloud 220’s operative language, which supervenes no matter what Rees and Reavis argue: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”
That echoes the reference in Speiser v. Randall to the margin of error inherent in fact-finding.
Although “abiding conviction” as California’s touchstone is equally subject to debate – what, for example, is the meaning of “abiding”? – Feeney admonished all concerned that California 220 is the standard by which Ferrer must be tried.
Yet, “abiding conviction” notwithstanding, Reavis points to U.S. Supreme Court language sustaining his argument that “utmost certainty” should be the benchmark jurors follow. The phrase appears in Re Winship, 397 U.S. 358 (1970). The court’s opinion in that case 45 years ago was delivered by the late Associate Justice of the U.S. Supreme Court William J. Brennan, Jr., considered one of 20th century America’s foremost jurists. Brennan wrote, “It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.”
In the same case, however, one of Brennan’s Supreme Court colleagues, Associate Justice Harry A. Blackmun, who also wrote Roe v. Wade, stated, “The court has never clearly held, however, that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution.”
That said, the objective Rees and Reavis share, despite their sharp differences, is deterring jurors from making erroneous deductions about the boundaries of the fuzzy reasonable-doubt standard. Long juridical experience shows that many jurors are likely to be confused and uncertain about what the standard means in practical usage, irrespective of the definitions and instructions proffered by counsel and the bench.
A 2001 monograph in the Villanova Law Review noted that the U.S. Courts of Appeals for the Fourth and Seventh Circuits have warned against defining reasonable doubt at all, because it “is not an easy concept for jurors to grasp.”
Why? A legal scholar at the University of Texas School of Law, Larry Laudan, postulated in a 2003 tract, Is Reasonable Doubt Reasonable? that the notion of guilt beyond a reasonable doubt is, in his words, “obscure, incoherent and muddled.”
Research based on mock juries, he wrote, “makes it vividly clear that jurors, ordinary citizens that they are, have only the haziest notion of what a ‘reasonable doubt’ is.”
Laudan claims the nation’s courts are rife with judges who recommend, and juries who use, “discrepant standards for guilt and innocence.” In his view, that discrepancy exposes the fact that reasonable doubt cannot possibly function effectively “as the all-purpose standard of proof that it is now expected to be.”
Does “reasonable doubt” mean “hesitation to act”? Laudan asks. Does California’s “abiding conviction” mean a moral certainty that is abiding? What is a moral certainty as opposed to a fleeting belief? And if not a moral certainty, then what? Should “abiding” be taken to mean no second thoughts? If so, how can one know, except retrospectively after the verdict, whether second thoughts will ensue?
Laudan also skewers the word “conviction.”
“The firmness of a belief, that is, the depth of one’s conviction in it, does nothing to settle whether the belief is rational or founded on the evidence. For instance, I may have an abiding belief that my recently departed Fido is now in dog heaven. I may even go to my grave believing it. Nevertheless, the endurance of this belief, or my current tenacity in asserting it, has little to do with whether it is rationally well-founded. Similarly, a juror may come to an abiding conviction about a defendant’s guilt for all sorts of ill-considered reasons, for example that the accused was a Scorpio.”
In a subsequent monograph in 2011, Is It Finally Time to Put “Proof Beyond a Reasonable Doubt” Out to Pasture? Laudan criticized the standard for furnishing “precious little information to jurors or judges about what kind(s) of proof they should be looking for in reaching their decision about guilt or innocence.”
So confused is the subject, he added, that the U.S. Supreme Court is on record multiple times urging judges not to attempt to define what a reasonable doubt is, even when jurors ask, as they commonly do, what it really means.
When judges do respond, they are apt to resort to empty bromides, Laudan complained, “Well, a reasonable doubt is not an unreasonable doubt.”
The standard is blatantly fallacious, Laudan believes, afflicted as it is with a high degree of subjective interpretation and what he terms “inferential laissez-faire.” Jurors receive no guidance on kinds of inferences they are allowed to draw that could legitimately sustain guilt.
Even if a juror has no lingering, rational doubts about a defendant’s guilt, that does not guarantee that the accused committed the crime, in Laudan’s opinion. “U.S. courts generally offer jurors no instructions about the kinds of inferences that could make that guilt highly probable; jurors are left wholly to their own inferential devices in reasoning from the evidence they have seen to a conclusion about guilt.”
Which is to say, in Laudan’s judgment, that jurors have to decipher the standard of proof for themselves no matter what the judge, the prosecutor and the defense attorney may say. What is more, he adds, the legally enshrined presumption of innocence “entails nothing whatever about what constitutes such a proof, nor even about whether such a proof need be strong or weak.”
For his part, Deputy District Attorney Rees asked rhetorically during voir dire last week, “What does it mean?” in reference to California’s “abiding conviction” yardstick.
It means, he averred, that the state’s case is true, not certain — a sally against Reavis’s stipulation of “utmost certainty.”
Rees was emphatic: “I do not have to meet” a standard of “absolute certainty or 100 percent certainty” in the Ferrer case, he declared.
Judge Feeney, of course, will have the last word, whatever the defects that attend proof beyond a reasonable doubt and he will of necessity advert to California 220 and “abiding conviction.”