Juries and evidence

Editor's note: In June, Universal Hub readers selected selected five questions for Suffolk County District Attorney Dan Conley. Here is his answer to one of them:

The murder acquittal rate seems to be going up in Suffolk County. You've been critical of juries in some murder cases that have voted to acquit, but is the fault with the juries or the evidence presented to them?

I'm glad this question was asked because it allows me to point out that the premise is actually flawed. In fact, just the opposite istrue - the conviction rate for Suffolk County homicides since I took office is nearly 90%, which is not only the strongest five-year rate in the modern history of this office but far exceeds that of many, many other major urban areas, for which the nationwide average is about 74%. So far this year, we've obtained convictions in 23 of the 30 homicide cases we've resolved. This is a track record I'm proud of.

In many ways, the impression that Suffolk juries are increasingly reluctant to convict has been fostered by our own successes. There is a sense among the public and the media that all cases - but especially serious cases such as homicide - are supposed to end with a conviction. Consequently, convictions in Suffolk County tend to generate relatively little media coverage whereas acquittals draw plenty of attention. In recent months, the relatively few acquittals we've had overall have been labeled by some in the media as "a trend", completely ignoring the real trend which has been a steadily improving and very strong conviction rate for many years now, including this one.

By way of example, the acquittal of a murder defendant in May was the subject of two lengthy articles in one of our daily papers, one of them a Sunday feature piece, and both of them referenced other acquittals in the months prior. Neither of them mentioned the guilty verdict days earlier in a monumentally difficult retrial - that of a deadly 1995 barroom stabbing that had been overturned on appeal. The facts of that case, introduced by reluctant witnesses trying to recall events they'd seen and heard while drinking late at night, would have presented a formidable challenge even if the incident hadn't taken place more than a decade earlier, but the conviction only merited about a hundred words in a brief the next day. We could stop announcing our acquittals to the media, as some agencies do in a bid to manipulate their own coverage, but I personally feel that that would be unethical and unrealistic.

Unfortunately, I think that race also plays a significant role in media coverage. One need only compare the coverage of the Entwistle and Ravenell homicide cases to see the uneven coverage of the murders of black and white victims. Most of you probably recognize the names of Rachel and Lilian Entwistle, killed in their Hopkinton home last January, but how many remember 21-year-old Kayla Ravenell and her two-year-old son, Xavier? Xavier's father and his new girlfriend were each convicted in January of two counts of first-degree murder for beating and smothering them to death in his East Boston apartment three years ago. The Entwistle murders have been front page news both locally and nationally since they were committed, but Kayla and Xavier's murders have been a footnote, by comparison. In my view, each of these cases is truly horrific, and the guilty parties committed crimes of a particularly cruel nature. They are also eerily similar - a mother and child both murdered. But in one case the victims were white, middle class and lived in suburban community, in the other black, poor and living in the city. As of this writing, the Ravenell murders, from the time the murders were discovered to the day Kayla and Xavier's killers were convicted at separate trials, generated about 45 stories in Boston's two largest
newspapers. In contrast, the Entwistle case has already generated about 100 stories and hours of television news coverage, and the case has not even gone to trial yet. The truth of the matter is that both of these cases deserve a high level of attention and I can't understand the wide disparities in treatment.

The resources we dedicate to prosecuting homicides and other violent crime are not so lopsided. In fact, across the board, the cases we bring to court today are stronger than ever before. Over the past two years especially, that's a lot of cases - in 2005 and 2006, prosecutors in my office tried 68 murder cases and accepted guilty pleas in 61 more, and there are usually anywhere from two to four homicides being tried in Suffolk County courtrooms at any given time. Those are numbers you won't see anywhere else in Massachusetts or New England. Each case represents literally months or years of thorough, professional investigation by Boston or State police detectives and intensive grand jury preparation by our homicide prosecutors.

This, of course, leads to your next question, which I assume comes in light of comments I made following the murder trial mentioned earlier. In that case, after nine days of testimony, the jury deliberated for only 3½ hours before finding the defendant not guilty, and I gave an interview to one of our daily papers when some of those jurors spoke publicly about the quality of the evidence. I have never directly criticized any jury, including this one, but I have made clear that we as prosecutors are required to prove our case beyond a reasonable doubt - not beyond any possible doubt. Our legal and ethical duty is to prove guilt to a moral certainty, not a mathematical certainty. This is a critically important point that I fear is sometimes lost or forgotten.

The trial by jury is a cornerstone of American jurisprudence. As a trial prosecutor myself, I have the utmost respect for the vast majority of jurors, who faithfully carry out their responsibilities and return verdicts reflecting honest, impartial deliberation. As the top law enforcement official for the cities and towns of Suffolk County, however, I have an obligation to push back when anyone makes a public statement about evidence in a murder trial that is, in my view, completely unreasonable.

So I take exception when someone says, "The Commonwealth should have had DNA evidence," or "The Commonwealth should have had better witnesses." If the evidence we present at trial doesn't include fingerprints or DNA, it doesn't mean we didn't look for it and it certainly doesn't mean that we found it but chose not to examine it. It means, in most cases, that there simply is no such evidence in a late-night street corner shooting. Similarly, we don't pull our witnesses out of central casting or try to shape their testimony according to our allegations. We present our witnesses "warts and all" and ask only that they tell the truth.

Several years ago, after reviewing the primary factors in a string of wrongful convictions that took place in the decades prior to my taking office and came to light after I became District Attorney, I joined with Boston Police, members of the defense bar, and the nation's top academic expert on eyewitness identification to see what we could do to make eyewitness testimony as strong and accurate as possible. The result was a sweeping set of reforms that, when implemented, made Boston and Suffolk County the "gold standard" to which other jurisdictions should look in devising their own policies. Eyewitness testimony, on which we must rely in the absence of the "CSI" evidence often seen on television, is extremely potent when gathered and used in a scientifically sound manner.

Eyewitness testimony presents its own challenges, though. It's not only because many of our witnesses have their own past involvement in the criminal justice system, or that we regularly seek relocation funds for them when their knowledge puts them in danger. Facts such as these are very often misrepresented by defense attorneys attacking their credibility. Far more salient is that these witnesses frequently live within a block or two of the person who fired the shot or wielded the knife. Even coming forward to tell police investigators what they know can be dangerous - to say nothing of taking the witness stand at trial months or years later. True, their testimony could help convict a killer, but what if the jury doesn't believe him or her, as happened in the case I just discussed? And what of the defendant's friends and associates, who walk the same streets, shop at the same groceries, and ride the same buses and trains?

As a career prosecutor, I fully respect the role of jurors. Cases go to trial when the facts are in dispute and I accept and respect any verdict where the jury takes the time to consider all the facts and determine whether there is proof beyond a reasonable doubt or whether reasonable doubt exists. But it's also incumbent upon me to address the realities I've previously described, especially when not doing so could give the impression that the justifications for the acquittal mentioned above were warranted or reasonable.

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