Thursday, July 24, 2008

Unreasonable Doubt?

by Vanessa Leggett

What's a juror supposed to do when common sense says a defendant is guilty, but the law says the prosecution has not proved its case? Before a defendant is brought to trial, the case against him is usually solid enough to secure a conviction. By the time a verdict is read, both sides are primed to hear one word: GUILTY. The evidence should be developed and presented in such a way that even the rare defendant who is actually innocent is mentally prepared to hear that word. That’s why all but the jurors are stunned whenever the verdict read is “Not Guilty.”

I've seen it happen in a Texas courtroom. I'll never forget the experience. My legs went noodly on me. So did the defendant’s, apparently; his attorneys seemed to hold him up. You don't have to be a witness or on trial for your life to appreciate the dramatic effect of those two little words. If you're at least 20, you remember your reaction to the televised verdict in "The Trial of the Century," the O. J. Simpson case. Whether you believed he was guilty or not, your jaw likely dropped. You can see in this video clip an expression of initial disbelief from Simpson himself, who took a moment to absorb the words he had just heard.

I was reminded of this feeling last night. While working on a blog I intended to post on suspected wife killer Drew Peterson, I heard a broadcast announcement that made me change my blog topic:

"We have breaking news to report to you," a talk-radio host announced. "Believe it or not, a jury in St. Paul, Minnesota found Aaron Foster NOT GUILTY for the murder of Barbara Winn. Twenty-seven years after the family fought for justice . . . a murderer, in their mind, Aaron Foster, walked free. . . . A shocking verdict for court watchers."
To my surprise, it was a shocking verdict to me, though I had only a passing knowledge of the case—woman says Get out of my life to abusive partner, who, rather than comply, takes her life. The setup was as familiar as the Simpson and Peterson cases. As was that queasy feeling in my gut that comes when I sense a miscarriage of justice.
Listening to the broadcast announcement of a not-guilty verdict from the other side of the country, I could only imagine the reaction of the victim's family, her children, and others present in the courtroom. No one knows the shock of hearing "Not Guilty" better than surviving family members. They'll tell you the effect is at once as dizzying and as sobering as a slap across the face.
Everyone who witnesses such a verdict is affected on some level. In the Minnesota courtroom, the words "not guilty" created chaos. The FOX affiliate in St. Paul reported that "the verdict left many people in the courtroom upset, swearing and crying." Family members shouted, "Oh my God. Oh my God." Another news source said that several jurors sobbed.

A Single Shot

The first fact I heard—that 39-year-old Barbara Winn had been shot in the chest—had my mind leaning in the direction that the gunshot wound was not self-inflicted. Might seem like jumping the gun, if you'll pardon the pun, but I will explain.

When I taught a course in Homicide Investigation for the Criminal Justice Center at the University of Houston-Downtown, we covered the basics of distinguishing a homicide from a suicide. Cadets are given various handouts (illustrated, incidentally, by the same talented man who designed Women in Crime Ink's Justitia logo—Rex White, Director of the CJC's Police Academy). As I recall, one sketch depicted a woman shot twice in the chest. The caption read: Homicide or Suicide?
Well, the number of shots alone pretty much answers the question. Most people who shoot themselves wouldn’t have the strength to discharge a firearm more than once, even if the first shot was a miss. Still, if the drawing had shown only one gunshot wound, but in the chest, like Barbara Winn's fatal injury, I would still lean toward homicide. Women, vain creatures that we are, rarely mar our faces or breasts.
Too Many Bruises
Barbara's body had been marred before she was shot. She had numerous bruises, some fresh, which prosecutors suggested had been inflicted during the struggle that led to the shooting. Aaron Foster (pictured to right of Barbara) had a pattern of domestic violence with women. His relationship with Barbara had grown increasingly violent, according to the "Justice for Barbara" Web site. Finally, she asked him to move out, told him the relationship was over.
"I'm not your girlfriend anymore,” Barbara wrote to him in a letter. “I will not be abused. I am tired of the bruises. I am somebody and don't have to be treated like a nobody. Strike three you're out."
After Barbara broke up with Aaron, she joined friends and family for a night out. She returned home just after midnight on May 8, 1981. Aaron had not moved out. He was waiting for her.
Later, two of her three children were awakened by a "loud fight." Both heard the gunshot. One son, then 12, testified that he heard his mother utter her last words: "Oh Bubbie, that hurt. . . ." (Aaron Foster's nickname was "Bubbie.") Reading that quote broke my heart. It's so sad, so real, you can almost hear her voice weakened by disbelief.
The boys said they ran to their mother's room just as Bubbie was rushing out. The children found Mama propped in a corner with a hole in her chest. The boys watched their mother die, powerless to keep her alive.
Though Barbara's sons told authorities they saw Aaron Foster running from their mother's room, Aaron's story to police was that at the time of the shooting, he had been downstairs packing his belongings into his car. He admitted he "heard a gunshot." But he said that he'd arrived in the bedroom to find her near death.
According to Aaron's statement to police, Barbara said, "I shot myself. . . . Get rid of the gun." That does not sound real at all. Why would she say, "I shot myself"? . . . Just in case Aaron was wondering who had used his gun to shoot his ex-girlfriend? (The same woman who'd put her feelings about him in writing: "Strike three you're out.") The simplest explanation for what he described as her dying declaration—"I shot myself"—was that he was attempting to clear himself by claiming her death was a suicide.
And he didn't stop there. Looks like he had to create a reason for fleeing with the weapon, so he told police that as Barbara bled to death she supposedly said, "Get rid of the gun."
So that's all it was, Aaron Foster would have us believe—just an unlucky guy trying to fulfill an ex's last request. . . . Come on. A woman is dying, so instead of calling for help, he runs to hide the gun? And what possible reason would Barbara have to tell him to dispose of the weapon? Think about it: Why would a woman who had fatally injured herself be concerned with police finding the weapon she'd used? There is no law against a person taking his or her own life. It's a practical matter. A dead person cannot be prosecuted.
The manner of Barbara’s death was listed as “undetermined,” a finding that did not change for more than a quarter century. Time was not on the side of the State. Over the years, ballistics evidence was misplaced. Surviving family members, understandably, lost hope.
Not Enough Evidence
Law enforcement, as Kelly Siegler noted in yesterday’s post, is routinely frustrated by prosecutors who won’t file charges against suspects who seem guilty to the public. The Barbara Winn case is an instructive example. In a televised press conference last year, the sheriff accused the county prosecutor of “dragging his feet.” Standing with Barbara’s family, he said, “We are befuddled as to why they haven't pressed [charges]. It's either lack of competency, lack of caring, lack of making it a priority . . ."
It had seemed that way until 2006, when a contentious sheriff's election caused prosecutors to lower the bar, indicting Aaron Foster for third-degree murder. According to Minnesota statutes, if Foster, "without intent to effect the death of any person, [did] cause[] the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, [he] is guilty of murder in the third degree."
By charging Foster with third-degree murder, prosecutors had hoped to show that even if Aaron did not mean to murder her, Barbara's death had been brought about during the course of an assault that culminated in a gunshot, killing her. That the manner of her death remained undetermined would not matter with third-degree murder, which can be unintentional or accidental.
The elements of the crime seem to have been satisfied. Barbara had fresh bruises and the couple's scuffle in the bedroom had been heard by the boys (pictured above with sister and mother Barbara). Those facts alone constitute evidence of assault, and exhibiting a deadly weapon (his gun) qualifies as "an act eminently dangerous to others," namely Barbara. An armed man assaulting a defenseless woman seems evidence enough of a "depraved mind." And the essential element, that she died, was indisputable. That's all the jury should need: evidence of a fight and a dead body.
Other circumstantial evidence that was not admitted would have been compelling. She was leaving him, had ordered him out. But the defense was able to suppress her Dear John letter and other evidence taken without a proper search warrant. Nor did the jury hear testimony of Aaron's pattern of violence with other women.
Should prosecutors have waited for more evidence before indicting? Apparently, the county attorney decided it was now or never. Twenty-seven years is a long time, and in all likelihood, prosecutors did not expect evidence would get any better.

Yes, it's true that there is no statute of limitation on murder. But there is a Constitutional limitation on how many times any state can try someone for the same crime. The State of Minnesota had one shot. The government missed. Maybe prosecutors had rolled the dice, taking the "he might beat the rap" tack—prepared to be pacified by taking Foster on the hellacious ride of a murder trial.
This jury's verdict showed that the county prosecutor had not been "dragging his feet," as the sheriff charged. Nor was the State's reluctance to go to trial a sign of incompetence, indifference, or failure to make this case a priority. If prosecutors lacked anything, it was admissible evidence sufficient to convict.
With the trial behind, two things appear clear: The defendant's rights were protected, but justice seems to have been undermined. I believe in safeguarding our civil rights. Yet I also believe in securing justice for victims. One should not have to come at the expense of the other.
Fewer Solutions
So what is a juror supposed to do when guilt is obvious but the evidence is insufficient to convict? Follow the law, as each man and woman on a jury panel must—however onerous and uncomfortable that can sometimes be . . . their internal conflict evident when jurors, as in the Foster case, must read their verdict and weep.
And what are victims supposed to do when they feel justice has not been served? Make their voices heard. Use the power of the pen (or the Internet) to send a message to those who can make a difference. Victims can also write to the jury, as did the family of Barbara Winn, in a letter that states in the opening paragraph, "We are not angry with you, the jurors. . . ."
Members of the jury actually posted written responses. Most agreed with this juror's statement: "[W]e couldn't prove guilt by the information we had at the time." Another juror's comment captured the essence of the conflict: "If you had looked over at the jury box as the verdict was read you would have seen many of us in tears because we so badly wanted to put it to rest. I am sorry for the way it ended but we had to follow the law and not our hearts."
Just Enough Courage
It's sad that after high-profile not-guilty verdicts, the public accuses juries of lacking common sense. I say such juries possess an abundance of courage, sending a message to prosecutors: Don't ask us to find someone guilty unless you plan to put on enough evidence to convict. In more acquittals than not, a jury's doubt was not unreasonable. What might have been unreasonable was the prosecution's decision to put the defendant on trial without having a strong case or a compelling argument.

When a case is weak or a prosecution is made in bad faith, the Constitution is there to shield the individual whose life and/or liberty is at stake. It might not seem right or fair that criminals are sometimes insulated from accountability by laws that occasionally leave victims hanging.
The truth is, the Bill of Rights isn't reserved for the accused. Law-abiding folks can take advantage of other entitlements. Barbara Winn's family members have exercised their First Amendment right to free speech. A scrolling marquee on Justice for Barbara reads: "AARON FOSTER IS A MURDERER." Can they say that? I think so. A defense to accusations can be found in more civil statutes than in criminal courtrooms: Truth.


Kathryn Casey said...

Great post, Vanessa.

I wonder how big a part the autopsy with undetermined manner of death played in the jury's decision. The prosecutor didn't have a clear finding of homicide, a big handicap, leaving the defense lots of room to argue suicide.

Anonymous said...

From what I have read so far it looks like the jury was swayed by the fact that she had gun residue on her hands and he did not.
I find it interesting that a police officer, who was his friend, witnessed violence against her and still never pushed for him to be tried. Even if he did testify against him in court, it still makes me wonder why he didn't do something that night when the two of them fought in his presence. That could have also tipped the jury towards a not guilty.

Anonymous said...

Outstanding post. I'm sure our founding fathers would agree with you. The spirit of granting defendant's due process rights was to insure that equity was served. The Constitution's intent was not to have crooks beat the system but to guarantee that the government not act arbitrarily or excessively in their pursuit of justice against the constituency. Thomas Jefferson would be appalled at the bastardization of his team's work in the name of political correctness at the expense of common sense.

Anonymous said...

That is true KC about the autopsy and besides that the note she left him was ruled unadmissable because it was taken without a search warrent. His history of domestic violence was not admitted either but I can kind of understand that.

Anonymous said...

I don't understand how you could have that "queasy feeling in [your] gut that comes when [you] sense a miscarriage of justice", when you admittedly had only a "passing knowledge of the case"... Isn't that assuming that the defendant is guilty without knowing all the facts?

I really don't see how you can post about a miscarriage of justice without being intimately familiar with the case...

Vanessa Leggett said...

Great points, all. Thank you.

Brian, I can understand your reaction. Perhaps an unrelated example would help you understand my involuntary response to hearing those words.

There is nothing particularly offensive about Old Spice aftershave. That it's still made means that enough people find its smell appealing. But let's say you were assaulted by someone who reeked of it. Like it or not, you would associate that experience with the scent of Old Spice. You might not smell it again for years, but when you do—Pow! It all comes back to you. Feeling ill is not something you choose. It's a physiological response to a stimulus. Nothing more, nothing less. That's what happened to me last night.

That said, you're entitled to think I should not post on something I have a passing knowledge of. Perhaps it was unfair to use the Foster case as an example when I did not hear all the evidence. I wrote on what I do have intimate knowledge of—that is, what it feels like to witness an injustice.

If you haven't experienced it, good for you. I hope you never do, because juries need people like you. Let’s all be glad that “Not Guilty” is such a rarity. It must mean that most of the time justice is served and our civil servants are doing their best work.

Thanks for reading.

Sandy said...

If it looks like a skunk, acts like a skunk, and smells like a skunk, chances are it's a skunk. Why are these laws in place? If the evidence is found what difference does it make how it was found? It should be allowed to be shown. That never has made sense to me. If they weren't up to no good up to their eye balls the evidence wouldn't be there.
As for OJ my jaw is still "dropped" on that one.
Politics and money are powerfull things.

Anonymous said...

Rex White also drew the mystery dude in the trenchcoat and hat. i dont know who the hell colored the crackers inside his artwork here

Rex woulda made em purdier!

Michelle said...

Excellent blog Vanessa. I remember exactly what I was doing when the O.J. verdict was read. My coworkers and I let out a collective gasp after we recovered from our shock. But, you're right, the responsibiltiy rests on the police who gather evidence and the prosecutors who argue the case. I can't imagine their frustration when damning evidence is not allowed.

Anonymous said...

RE: The Barbara Winn case:

Anonymous said...

My name is Patty. I am Barbara's sister in law. I thought I would clarify a few things for your readers, concerning Aaron Foster's murder trial.

The letter that Barbara wrote to Foster a few days before her death was ruled inadmissable because "it was obtained, without a search warrant, by the invesigating officers when they returned to Barbara's home later in the day on May 8th".

If this were, truly, the case I would have to say that Judge Cleary's ruling was fair (even though I did not like the ruling and it hurt the case). But, the ruling was flawed because the judge was misinformed by the legal arguments, concerning when and how the letter was obtained. The arguments were inaccurate, in part, because the memories of the officers who were at the scene had faded to varying degrees.

The police reports indicate that the letter was actually taken before the officers and medical examiner left Barbara's home. Though the police reports do not state how the letter was obtained, Tammi; Barbara's daughter, did in fact tell the police officers, who were at the murder scene, about the letter she watched her mother write to Foster. She then showed them where Barbara had placed the letter in one of her dresser drawers. She gave the officer the letter and, per Maplewood police reports, he showed the letter to Barbara's sons, Randy and Tyrone, to ensure that the handwriting in the letter was, in fact, Barbara's writing.

We tried to explain this to the prosecutors, several times. But, they insisted that the letter was taken when the officers returned to Barbara's home later in the day. The prosecution and the defense focused on a "steno pad" that was retrieved by the police officers, later in the day without a search warrant. The steno pad was taken by the investigators so they could compare the handwriting in the letter to samples of Barbara's handwriting that were in the steno pad. The police reports by those investigators clearly state that the steno pad was taken for the purpose of obtaining a handwriting sample. There is no mention, anywhere, in the report that the letter was taken at the same time that the steno pad was taken. Moreover, Randy, Tammi, and Tyrone were not at the residence when the investigators returned and took the steno pad. So it would have been impossible for the officer to have shown the letter to Randy and Tyrone, at that time. We have the police reports, and the officers' reports are very clear about what was taken later in the afternoon of May 8, 1981 by the investigating officers. The letter was NOT taken at that time. But, unfortunately, both the prosecution and the defense were confusing the actual letter with the steno pad.

Also, Barbara had instructed Foster to move out of her home (many witnesses verified this in court)...his name was not on the lease. And, even though Foster gave his mothers address as his home address, as opposed to Barbara's, to the police, the defense argued that they searched "Foster's" home without a warrant. It does not make sense to us now, nor will it ever, that the police had to get Foster's consent to search his murder victim's home.

Concerning the numerous incidents of violence with other women Foster abused:

The only reason Foster's pattern of abuse was not allowed in to evidence is because the women whom Foster victimized refused to cooperate with authorities...they are still scared of Foster (as are many male witnesses, to other relevant incidents, who refused to testify in the trial, as well). However, their accounts of his numerous threats with guns, threats on their lives, and severe physical violence are very well documented in police reports.

The gunpowder residue on Barbara's hands is one aspect of the case which confused many people...until it was explained during the jury trial. If you scroll down the page on the link below, you will find a photo of the palm side of Barbara's left hand. The photo confirms that Barbara's hand was over the cylinder of the gun when it went off, and that the firing pin pinched her hand, leaving blood blisters. The photo shows gunpowder residue on the palm side of Barbara's hand.

Although the medical examiner who conducted an autopsy review, also, ruled the manner of Barbara's death as "Undetermined", she did state that the angle of the bullet wound that killed Barbara is NOT consistent with a suicide.

Also, Foster claimed for 27 years that he was NOT in the room...or, even in the house...when Barbara "committed suicide". But, during the trial, his attorney changed the story and argued that Barbara threatened to kill herself, so Foster struggled over the gun with Barbara and that it went off, so she killed herself "accidentally". The reason they were able to get away with that stunt, is that Foster's statements to police on May 8, 1981were suppressed because police questioned him as he sat in the back seat of the squad car, before he was read his Miranda warning. Consequently, all of the statements Foster made after that, were not allowed, either.

Because so much of the evidence was suppressed, the case presented to the jury is not the same case contained in the casefile!

Anonymous said...

Here are some recent articles on this case:

"Judge won't expunge Aaron Foster's criminal record despite acquittal in girlfriend Barbara Winn's 1981 murder"

"Records kept open in 1981 shooting"

Anonymous said...

Here is the most recent news on the case. A Ramsey County Judge issued a factual finding of murder and a 6 million dollar judgment against Aaron Foster.