Sam Redman's Musings

Random thoughts on a variety of subjects

Triers of fact… what is the truth?

 

Reading some of my other posts, you might mistake me for someone who believes that Bent got an appropriate sentence.  But, prior to the trial, in several internet forums, I strongly advocated that Bent be given probation and that he should not have to serve any jail time.   Of course, the sentence which he did receive is within the bounds of legal “reasonability” for a unrepentant convicted sex offender and so the prospects of it being overturned are now virtually nonexistent. But, I personally wished for him to have leniency and to be able to serve his punishment from his home.  I presented my arguments accordingly during the two weeks after the verdict and prior to the sentencing date (which was the proper time to get such pleas voiced).

Logically (conversationally), some  have wished to compare what happened in this case to that of a high school coach, who got a light sentence after he confessed to having sex (consensual) with a student and subsequently plead guilty, but while that kind of argument might be useful in an effort to advocate changes in the legal system (I suggest that if there are those who really care about that kind of reform,  they get started on that),  but the similarities and comparisons with an isolated, unrelated case, honestly have no use (legally) in consideration of whether this sentencing was appropriate.

The way the system works, this is indeed a very technical “game,” a very serious and sometimes cruel one at that, involving the prospect of personal freedoms being lost and varying amounts of time possibly spent in prison (and even lives being lost by execution), all depending on how well that “game” is played. The law has various technicalities and those strange detailed particulars about the way a given law is written are what must be understood by the defense in such a way so that they can design an approach which will enable their client to either be found not guilty or get the lightest punishment possible.

Many people are confused regarding whether testimony of  several witnesses which seems to exonerate the accused should be all that a jury should consider.   They suppose that if you can get a few witnesses to testify on behalf of the defendant, then the jury is obligated to  respond with a “not guilty” verdict.   The mafia mobsters often attempted to defend their people on trial using  just such an approach.  Many also think that if a prosecution witnesses turns that a jury has no other choice than to acquit. 

But, such a position stems from a basic misunderstanding about what a jury does and how our trials work. The role of the jury is not to compile or collect the various statements of witnesses. That’s the role of the court clerk, preparing the trial transcript. The jury instead is known as the “triers of fact.”   This means they simply are the determiners of the truth. They listen to witnesses and based on such things as intuition and best judgment (inclinations, reason and even opinion) they decide whether what was testified was “the truth.”  Sometimes, it’s as simple as what is colloquially known as “the smell test.”  In spite of a witness making a statement, which seems to indicate something, even assertively (such as Wayne Bent didn’t touch a breast), the jury must decide whether such a testimony is credible (remember the old “I’m not buying it” line your mother gave you when you told about how the cookies disappeared). 

Bent admitted on the witness stand that he put his hand on the girl’s naked chests.  Whatever the girls said about that (or anything) could have then been disregarded by the jury (they have that prerogative and direction), because those girls might have shown signs of having been coached and the jury had the testimony of the accused on that subject.  The question came down to whether Bent could have (or would have) put his hand only on the one inch wide sternum bone. Common sense (and the helpful video provided by the defense) showed that any testimony that the breasts weren’t touched wasn’t believable. I think that once that “sternum” phrase was introduced, the credibility was lost right then. It just has the ring of a “contrived” explanation.  In my opinion, that is another example of what was a defense failure, permitting that word usage as a part of the strategy (yes, they are the ones who made this into a technical discussion, employing an anatomical term not in the conventional vernacular). They invited the concept of width comparisons… they reduced it to a jury decision, regarding whether the width of a man’s hand would have allowed merely touching such a narrow location and if it made sense that would someone could (or would) just limit their touch to the “sternum”. If they only could have shown a video of Bent  just touching sternums, it would have been believable that someone would have ever conducted such a strange practice… but, they offered another one showing something else.

 Hand on Sternum

Back in May of 2008, in several writings in preparing for the Grand Jury, Bent first introduced the concept of the “sternum” touching (Bent is actually the architect of his own defense tactic). I immediately called it out in several detailed postings on the internet (those are available if anyone would be interested) as a bad defense strategy. I called it the flawed “sternum defense” and said that it wasn’t credible.  I was correct… it just didn’t pass “the smell test.” What was strange was that they had already used this same weak approach before the grand jury (and it failed) and then they  tried it again in the open trial. If you are going to play the “technicalities game,” as Bent did… you must be certain that your tactic is the truth (or at the very least, believable). His wasn’t.

— Sam

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This entry was posted on January 12, 2009 by and tagged , , , , , .