A Texas father was found not guilty Wednesday of gunning down the man who killed his young sons in a drunken-driving accident. It took the jury three hours to acquit David Barajas, who was charged in the shooting death of 20-year-old Jose Banda Jr. in December 2012. "I thank God. This has been hard on me and my family," Barajas told reporters. "It's been a lot of weight lifted but I'm still very hurt."
An intoxicated Banda struck Barajas and his two children while they pushed the family’s disabled truck down a road, just 50 yards away from their home in Alvin, south of Houston. Barajas’ children — David, 12, and Caleb, 11 — were killed. Amid the chaos, authorities charged, Barajas went home, retrieved a gun and went back to the wreckage to shoot Banda in the head. But investigators never recovered a gun and didn't have an eyewitness to the shooting.
A Texas Jury Speaks
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One of the reports I saw on this also said the police had found no gunpowder residue on Barajas.
Eric Hines
Plausibly, some public spirited citizen happened by.
Or he washed his hands. Somebody shot the guy. Occam's razor points to the dad.
But you can't convict people on that (usually).
Not with this jury, certainly.
Frankly, the State's case was extremely weak. They had him for motive, and perhaps for opportunity. But with no other connecting evidence, this should never have been brought to trial. Seriously, I'm not even a law talker and I know enough to poke so many holes in the DA's case as to convince a jury of reasonable doubt.
Sounds to me as though the jury followed the rules exactly as they are meant to be followed. Not a surprising ruling at all, and had they ruled otherwise it's quite possible the judge would have overturned their verdict immediately.
That's precisely the way the system is supposed to work.
They had him for motive, and perhaps for opportunity. But with no other connecting evidence, this should never have been brought to trial.
I'm not sure I agree with that, Mike. If he never left the scene and someone else shot Banda, then one would think he saw who did it. The evidence may not have been enough to convict, but additional evidence comes out at trial all the time. Sometimes, that's precisely *why* the evidence comes out - someone who did see or know something finds out about the trial and comes forward.
I can't see this as prosecutorial misconduct - seems more like a judgment call that could have gone either way. Either way, based on the evidence it seems the verdict was the right one.
I may be wrong on this one Cass, but isn't bringing it to trial and hoping facts "show up" during the course of the trial a fishing expedition? "Well, there were no eyewitnesses who talked to police, but we're hoping one will come forward during trial"? Is that a thing that happens? And would be allowed? I'd have thought that'd be squashed as an attempt to end run around discovery. Otherwise, prosecutions could simply tell witnesses not to come forward until after the trial began to prevent defenses from having time to prepare for them.
If he never left the scene and someone else shot Banda, then one would think he saw who did it.
The prosecution's contention is that he did leave the scene (to recover a weapon that subsequently disappeared). All the defense has to do to provide reasonable doubt is to agree with prosecution that he left the scene, and simply claim that he did so to get help, not recover a weapon. What's the prosecution going to do, say "Nuh uh! He was there the whole time?" They can't have it both ways.
And seriously, it's not that hard to destroy the prosecutions case. "He went home, got a gun, returned, and shot the victim." "I see... so do you have evidence that the defendant owned a gun?" "Well... no." "So you found the gun on him, then." "Not as such." "Well then you have forensic evidence showing he had fired a gun." "Nnnnnnnno." "Eyewitnesses saying the defendant shot the victim, then?" "Not really, no." "So you, in fact, have no evidence to support any of your conclusions here." "Well he COULD have done it!" Not much of a case.
I'm not saying there was misconduct. I'm saying it was a waste of taxpayer money to bring such a shaky case to trial.
This sounds like a candidate for the Scotch verdict of "Not proven," meaning "Not guilty, but don't do it again."
I'm guessing the mindset of the jury was, "In principle we agree that vigilante violence is a bad idea, but we're so furious at the victim that we have no intention of convicting the grieving father unless the case is 100% airtight. We're not exactly winking at the murder, but we're going to vote not guilty unless we're jammed into a very, very tight corner."
If it had been a more ordinary killing by a bad guy involved in the drug trade or a robbery, they'd probably have been more open to circumstantial evidence. But maybe not: I'd really hesitate to convict anyone without physical evidence. And I'm really glad this father didn't leave any physical evidence. I also wonder if anyone looked very find to find some, of if they just sort of put the telescope to their blind eye.
Lord Devlin, in talking about cases where the law transgresses the moral feelings of the jury, says that (even in England, about which he was writing) juries will certainly apply the law with which they disagree -- but they will take a very forgiving view of the facts.
I'm not sure I like the implication that if the defendant had been a lifelong thug with a rapsheet as long as my arm, and the defendant a preacher that they'd have found him guilty. Unless there's a whole lot of evidence we're not being told, there quite literally is nothing more than motive and POSSIBLY opportunity tying the defendant to the crime.
We're supposed to presume innocence unless the State can prove guilt beyond a reasonable doubt. Lack of a murder weapon, lack of forensic evidence, and lack of witnesses simply is too much of an opening for doubt to rule this guilty. If they had gunpowder residue on the defendant, then that would help the prosecution's case immensely. If they found that the defendant was known to own (or have easy access) a gun as the same caliber as the weapon used to commit the murder, that would be something. If they had ANYTHING other than a very likely theory, then maybe I could vote to convict. But regardless of everything else, this looks (from all reports I've read) to have been a critically flawed case from the beginning.
Now, Tex raises an excellent point that there's the possibility the police were complicit in covering up evidence. If so, regardless of how sympathetic I may be to the reasons, each and every officer who had done so needs to be fired and prosecuted. NOTHING is more poisonous to freedom and justice than law enforcement who has demonstrated a willingness to turn a blind eye to "good" crimes. How can you ever trust such a person to be evenhanded ever again?
And to be clear, if the case had been airtight, and the forensic evidence tied the defendant to the crime, and there were witnesses who could absolutely identify him, and the jury decided to acquit him, then I could accept that. The community deciding not to punish a crime is one thing. Law enforcement not wanting to punish it is something else completely.
Grim had an excellent piece about law enforcement being full time citizens acting in the public good. But part of that public good is being even handed in the execution of their duties. They must be impartial, or we are setting them up as overlords who determine what is right and wrong based upon their own judgement. And that is a very dangerous thing.
"Reasonable doubt" is an exceedingly elastic concept. There is no doubt in my mind that juries interpret according to their feelings of rough justice, without necessarily doing any violence to their conviction that they followed the law. It's a dangerous habit, of course. I would want a jury to search their hearts thoroughly.
But on the whole, I can't bring myself to worry too much when society declines to punish someone in extraordinary circumstances. Criminal penalties aren't always the best solution.
Quite so.
There is no doubt in my mind that juries interpret [reasonable doubt] according to their feelings of rough justice....
I've been on two juries in two jurisdictions where the same jury deciding guilt or innocence then decided the sentence, given guilt. In both of those cases, "reasonable doubt" was carefully considered in the part of the trial where we were deciding whether or not the guy did the deed. That's a simple question, and the judges did a good job of explaining the meaning of reasonable doubt. Based on the evidence provided, did the State prove its case beyond that threshold, or not?
The "rough justice" was deliberately and overtly limited to the sentencing phase. In one of those cases, we didn't reach that phase because we hung on the simple question, but varying degrees of doubt or how loosely that should be applied wasn't a factor.
Eric Hines
If there was no gunpowder residue on the defendant, a jury would likely need an explanation, before they would convict. Without the weapon and the gloves, there is no case.
And if the prosecution had all that, then the jury would consider mitigation.
Valerie
Given the circumstances, I wonder how hard the police looked for the gun.
Lord Devlin, in talking about cases where the law transgresses the moral feelings of the jury, says that (even in England, about which he was writing) juries will certainly apply the law with which they disagree -- but they will take a very forgiving view of the facts.
And a great English jurist, Sir Thomas More, said this:
“Were it my father on the one side and the devil on the other, his cause being good, the devil should have his right.”
There spoke a man with respect for the law.
The jury that will issue "juridicial pardons" will just as quickly issue "juridicial anti-pardons"...and convict the one man for his bad personality as they convict the other for his good. The right way is straight down the middle. I'm heartened at Eric H.'s reminiscence...it's how military justice is supposed to work, too. (The panel's supposed to apply the law strictly on findings; but on sentencing they can consider nearly anything in the accused's favor. That's how you temper justice with mercy.)
Beyond that, this reminds me a little of an old post of mine. A man shot what he thought was a villain trying to abduct and rape his wife (because the wife was crying "rape!")...if the story I read was true, the dead man was actually her lover, and her cry of rape an effort to deflect blame. The authorities indicted the wife but not the husband.
The reporter was trying to convert this into some kind of rough "Texas justice" but it was really just regular old justice-justice. The man acted on an honest mistake based on the knowledge he had at the time--even war criminals get the benefit of that.
err, as quickly as they will acquit the other for his good...
And quite right, too: the woman got her lover killed by bearing false witness against him in a cowardly attempt to deflect blame from herself.
I'm not sure I agree that a jury that will squint hard and balk for a sympathetic defendant will convict unjustly for an unsympathetic one. If a jury starts, as I hope it will, with the strong prejudice against government action that is embodied in our very tough "reasonable doubt" standard, it will be much more likely to acquit than to convict on the basis of sympathy. Prosecutors have discretion whom to indict, and juries, by design, have nearly unquestionable discretion whom to acquit.
If a jury starts, as I hope it will, with the strong prejudice against government action that is embodied in our very tough "reasonable doubt" standard, it will be much more likely to acquit than to convict on the basis of sympathy...
The prosecutors have an easy answer for that. They focus on the "victim"...or the accuser, anyway (but in prosecutors' parlance she's always the victim, and if you're trying to make a deal on other charges, they may reject you if you won't "vindicate the victim").
A criminal trial is supposed to be between the government and the accused, with the alleged victim as a witness like any other, but the popular trend now is to treat it like a private lawsuit between the accuser and the accused. I've seen accusers refer to the prosecutor as "my lawyer." Nowadays it's worse. In the military, they've appointed not only "special victim prosecutors" (very experienced lawyers to tilt the balance in favor of the prosecution...but only in victim cases), but "special victim counsel" (lawyers who represent the alleged victim, even though she is not a party to the case...their main purpose is to help to keep out evidence that's helpful to the defense but embarrassing to the accuser).
Add to that that the whole military...and most of our college-going population as well...is being indoctrinated in political correctness and the Cult of the Victim (with varying degrees of success)...and I'm afraid a jury that decides it's going to brush the law aside and decide on sympathy will convict the innocent as readily as they release the guilty. Maybe if the "victims" at Salem hadn't been cute little girls, there'd've been a little more restraint.
The straight path is the only path. Don't settle for anything less!
Lord Devlin's point was a democratic one: he was arguing against elite attempts to alter the law as a means of trying to force the common British subject to follow elite opinions on morality. Practically speaking, he said, they will follow the law -- but they will also consider the facts in a very generous light.
He had examples where the law held what was on its face a very high evidentiary bar in its affirmative defenses, but statistics showed that almost everyone who appealed to that defense succeeded in being cleared by it. British juries were just prepared to believe your testimony that you were doing the right thing, in cases where the law would otherwise require them to send someone to prison of whom they really approved or with whom they sympathized.
That being the case, Devlin said, the law might as well be a law that lines up with the moral beliefs of the kind of people who end up on juries.
Someone who believes as you do, Joseph, ought to agree. If jury nullification erodes the law in ways you don't like, it would be wise for the law not to be structured in such a way that juries are going to be strongly inclined to nullify it!
Make the laws respected by making them respectable? You bet!
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