American Justice: How Reasonable is Reasonable Doubt?

GELFAND’S WORLD--I'm not bothered by the fact that Paul Manafort escaped conviction on 10 of the 18 counts he was charged with. To explain that, I'd first like to tell a story. 

In 1997, an elderly man was murdered at the theater he ran. I thought of him as a friend. He certainly was a mentor in my newly developing interest in early film. Through him I discovered the genius of Buster Keaton, the wonders of Mary Pickford, and even a little something of the work of cinematic pioneer D.W. Griffith. Then one evening during a performance, gun shots took his life. 

It was two years after the murder that the killer and the man who had hired him to do the shooting came to trial. The story of the murder and the murderers has been chronicled in news stories and a recent documentary film, so there is no need to retell it here. What is relevant to this discussion is the trial itself. 

I really wanted to see the killers behind bars, but I also wanted to be sure that they were in fact the right suspects, the actual murderers. It wouldn't do to imprison the wrong people while the real killers went free. 

Those who teach and defend our system of criminal justice say this a little differently. They concentrate on the fact that we must not punish the innocent because that is a terrible thing in and of itself. I agree with this -- it's a fundamental principle of Anglo-American justice, but there was in this case that one extra element, which was the emotional need for retribution. Call it justice or even revenge if you like, the survivors and relatives of the decedent have a need for it. Nowadays, the polite term we use is closure, although it is a poor description for what actually goes through the mind. 

At the end of the trial, I was truly convinced that they had the right men and that the prosecution had proved its case. When you hear the testimony and see the exhibits, you get a direct feeling for the meaning of that phrase "beyond a reasonable doubt." It is a high bar, and it is made that way necessarily and rightfully. We have added an additional requirement -- perhaps even stricter than the first -- that in criminal trials the jury's vote has to be unanimous for there to be a conviction. 

Twelve out of twelve jurors voting that they are convinced beyond a reasonable doubt-- our system is designed to give every defendant the opportunity for a defense, and to make it hard for the state to have its way. 

There is an important corollary to this principle, and that's where the Manafort verdict comes in. As of this moment, there is no longer any credible way for partisans to claim that the crimes didn't happen, or that Donald Trump's onetime campaign chair wasn't the one who did them. 

One other important point: In our system, the jury verdict is considered to be the established truth. I can write that Paul Manafort is a felon, and it's not libel -- it's the official description of Paul Manafort under the law of the land. I can list his crimes without fear that he will sue me for slander, because they are things that have been adjudicated. 

What's important from the political standpoint is this: We can now say that Manafort did those things, and any claims to the contrary are revealed to be the self-serving partisan garbage that they are. Ditto for self-serving claims that what he did wasn't all that bad. 

(Somebody will surely point out that criminal convictions are sometimes overturned on appeal. This is also true, but irrelevant at the time of the jury verdict. The jury is given the responsibility for determining the facts in dispute, and their verdict is, unless reversed on appeal, the final finding of fact. In our system, the appellate process determines whether the law and evidence were presented to the jury properly, but in the absence of significant legal error on the part of the judge, the jury's findings are established as fact. It's hard to imagine the Manafort trial being overturned on appeal. Unlike some other ways of doing things, our system is designed to provide finality upon the jury reaching a verdict.) 

And now we get to the reason I am not just accepting, but even pleased with the way the Manafort verdicts came down. The fact that the jury discarded some of the charges shows that our system was fair. Not only fair, but perhaps even overbalanced a bit towards the defendant. If that is the case, then fine by me. The mixed verdict shows for all the world to see that Manafort was given a chance to defend himself and did not succeed in the case of 8 serious felonies. 

So the mixed verdict is strong support for the argument that our system worked the way it is meant to, that it was used in good faith against the defendant, and that Manafort truly is guilty of those crimes. 

One more part of that story that I began in the first paragraph. The murder trial took place in the early spring of 1999. Coincidentally, this was just a little after the impeachment trial for Bill Clinton. At the time, I felt that the Clinton impeachment was driven by partisan hatreds, perhaps similar to what we have seen over the past several years. In any case, it was impossible not to notice the contrast. In one case, there was an attempt to overturn a national election based on the president lying about his sex life. In the other case, there was a corpse, a widening pool of blood and in addition, a second wounded gunshot victim who ultimately survived. 

Anyway, when the murder trial was over and it came time to sentence one of the convicted murderers, a couple of us who had known the late Lawrence Austin were allowed to speak -- it's a right that had been created for crime victims and the relatives of murder victims, and in this case the court allowed others such as me to speak. 

One of the things I said at the outset was that we had recently gone through that other trial on the opposite coast, but this trial in Los Angeles was more important, because it represented the real work of democracy. If we are to remain a free people than we have to make it exceptionally difficult to convict anyone of a serious crime, but that having been accomplished, the state and the people have the right to treat the verdict as correct. 

And we come full circle to that concept of closure. A finding of guilty may not be emotional closure for the mourning relatives and friends, but it is closure at the legal level. It is the official determination, and in the case of Paul Manafort, neither the president nor the convicted felon himself nor the right wing propaganda media can challenge the rest of us who will be calling Manafort a felon. 

And the same certainty and closure accompanies the guilty plea by Michael Cohen. The prosecution in both cases established beyond a reasonable doubt that Donald Trump hired crooks, one as a lawyer and the other as a campaign manager. From a political standpoint, it provides a factual basis for future claims regarding Trump's judgment. 

Numerous analysts have now pointed out that Donald Trump has been identified as an unindicted coconspirator (a familiar term from Watergate days) in Cohen's violation of election laws. The political effects are deftly described by Marc Cooper.  

As this is written, one juror has told the news media that of the 10 counts that the jury hung on, all but one juror voted to convict. This is even stronger evidence that the system worked fairly in the case of the 8 convictions, because someone who was willing to derail the prosecution on those other 10 counts was finally overwhelmed by the evidence on the first 8. And by the way, the juror who spoke to the media allowed as how she had been a Trump supporter, so her vote in joining the unanimous verdicts on 8 felony counts is telling.


(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected]