The Texas Tornado took a loss. Not being a kid in need of manufacturing a shiny internet persona, he used his loss as a learning, and teaching, opportunity. Good lawyers will do that. They don’t have to pretend that everything they touch turns to acquittal, though some detractor will eventually point out it and shout “loser, loser.” That guy will always be there, so all you can do is shrug and thank your lucky stars it’s not you.
It wasn’t an earth-shattering case. Not a high profile murder. Not a massive drug conspiracy. It was a DWI, but even DWI defendants deserve lawyers as good as Mark Bennett. The defendant’s BAC was tested 80 minutes after the stop, and rang the bell. The prosecution’s expert testified that “it was impossible to say what the BAC at the time of driving was from the blood test 80 minutes later.”
This was enough. Or it should have been enough.
I had argued to the jury that criminal court is the wrong place for common sense. The argument did not go over well—I got feedback that I seemed to think I was smarter than the jurors.
In deliberation jurors used their common sense, which flew in the face of the expert testimony in the trial.
Specifically, they said after the verdict that my client’s BAC at the time of driving “must have been” higher than 80 minutes later.
Bennett’s jury did what many juries do; they “outsmarted” the too-smart lawyer. Some jurors suppose there is something they’re not being told, and so they see their mission as trying to discern the “fact” they’ve been denied. They’re not going to let that smug lawyer pull one over on them.
In this case, they were told by the prosecution’s expert that it was impossible to determine what the defendant’s BAC was at the time he was stopped. It could have been higher, and lessened in the 80 minutes that elapsed between stop and blood test. Or it could have been lower, and increased as alcohol was absorbed into the blood.
The legal point was that it was the prosecution’s duty to prove which one it was, and their own expert testified that he could not do so. The jury was having none of it. So what if the expert couldn’t say. They put on their juror junior detective hats and came up with an answer. Guilty.
As an aside, for all those nice people who believe passionately that jury nullification is the cure to the disease of over-criminalization, over-incarceration, a broken legal system, what happened here is by far more likely. If given the opportunity to ignore the law, here the burden of proof and presumption of innocence, jurors will convict. Anyone who assumes that juries employing nullification will tend to acquit has never tried a case. Jurors, your friends and neighbors, want to convict. They nullify already, as reflected in the verdict here.
But what of Bennett’s contention that “common sense” has no place in a courtroom?
“Common sense” is not intelligence, reason, or even common knowledge. It’s what we use to justify decisions that we can’t (or can’t be bothered to) explain in terms of intelligence, reason, and knowledge. So “don’t fall back on common sense” is not meant as “you’re not smart enough, but rather as “you’re too smart for that.”
He is, of course, correct, but it’s a very hard sell.
Common sense is used for one purpose only, to instruct jurors to ignore the lack of evidence and take an inferential leap over the gaps in proof. These words reflect the plague of our jury system, and its pretense of making findings “beyond a reasonable doubt.”
People do this all the time, fill in the blanks in what they know, or believe they know, because it’s too hard to gain the requisite knowledge and too unpleasant to confront the consequences of its absence.
One of the maxims that characterize America is that everyone is entitled to their own opinion. I’ve never been able to agree with this, unless it includes the proviso that an opinion is based upon something, be it facts or reason. Thoughtless or baseless “opinion” isn’t opinion at all. It’s just facile conclusion. As my daughter once said in response to my challenging her assessment of American politics, “I hate thinking. It hurts.”
Bennett gave the jury credit for the capacity and willingness to take the risk of a headache.
It may be that this is too sophisticated an argument for normal people.
By treating the jurors as if they were smarter (and more knowledgeable) than they were, I both failed to educate them and came across as thinking I was smarter than them.
Since my first arguments here in 2007 about how the notion of “common sense” is merely a facile alternative to thought, people have chosen to spiral deeper into the welcoming arms of mindless beliefs, that there is no point to logical thinking when feelings will be more than sufficient.
Telling a jury not to use “common sense” is a sophisticated argument. Some people will get it. Some will not. Some will have a reflexive reaction to anyone suggesting they not do what they’ve done their entire life, and managed “just fine.”
As for Bennett coming across as thinking he was smarter than the jury, aside from the fact that he was, that too is a corollary of common sense. People who challenge your personal “wisdom,” the essence of how you decide important questions in your life, by telling you that you’re doing it wrong, are calling you stupid. They may not mean to be, or say the word, but that’s what’s heard.
In a country that places little stock in logical thought, rational discourse, the argument becomes increasingly harder to make. If you can achieve the outcome you desire without engaging in the real labor of thinking, why risk the headache? Common sense is always an easier path, as it requires no further explanation. What sort of juror is going let himself be tricked by some lawyer who thinks he’s smarter than him?
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