Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

my latest oped on prejudice and justice - 

EXPOSING REAL PREJUDICE

In a case of first impression, the U.S. Supreme Court recently ruled that 
during a murder trial, three members of the victim's family, who were 
spectators, could wear buttons showing a photo of the victim.  The Court 
overturned a ruling of a lower court that had reversed the conviction ruling 
that the buttons were prejudicial.

The case grew out of the conviction of Mathew Musladin for the murder of Tom 
Studer, his estranged wife's fiance.  Musladin appealed and the 9th Circuit 
overturned the verdict holding that the buttons were unfair because they 
implied the victim was "innocent" and the defendant was guilty.  

Memo to the 9th Circuit:  ALL murder victims are innocent -- and it's much 
more than the legal "presumption of innocence" we give the accused -- it's a 
fundamental truth because unlike the defendant, the victim is NOT on trial! 

Moreover, is there really any room left for a jury to feel unfair prejudice 
about a button after it hears how a guy hunted down his victim and then 
pumped a bullet into the back of his head and there's no mystery about who 
did it or how.  If this is the evidence, you're kind of prejudice-proof when 
it comes to the power of buttons.

Contrast Musladin's silly claim with the truly prejudicial comments of jurors 
who convicted Christopher McCowen of murdering Cape Cod socialite Christa 
Worthington.  A few jurors reportedly expressed a disturbing level of the 
worst kind of prejudice during the deliberation process, including statements 
about "scary black men".  Unbelievable!

If the judge finds these statements were in fact made and played a role in 
the jury's guilty verdict, McCowen deserves a new trial.  In the meantime, 
McCowen's attorney should be furious with Musladin's attorney because when 
ridiculous claims of "button prejudice" are made, valid claims about serious 
racial prejudice get less respect.

If we really want fair verdicts in criminal cases, what we need is more 
careful screening of jurors to prevent problems from happening in the first 
place.  And I'm not talking about problems that ONLY hurt the accused.

Remember the five jurors who were selected to serve on a murder case in 
Suffolk County - and who lied about whether they had ever been convicted of a 
crime?  They should have been prosecuted for perjury to send a message to all 
citizens that jury duty is serious business.  

We also should make at least SOME effort to exclude from rape trials the type 
of juror who thinks a victim is responsible for her own rape if she was 
drinking with or kissing the defendant before the assault.  We never screen 
for this type of sexism in rape trials -- which is why so many land in unfair 
acquittals.  It's embarrassing.

And we need to find a way to intervene in the middle of juror deliberations 
to prevent unfair verdicts when the screening process doesn't work.  Whether 
a juror says "I'm voting guilty despite a lack of evidence because the guy is 
black" or "I'm voting not guilty despite overwhelming evidence because black 
men have been unfairly persecuted in the past and I want to make it up to 
them", there has to be a way to remove both types of jurors from the 
deliberation process before a judgment is rendered.

We could do this if we adopted a "snitch rule", as California did after the 
OJ Simpson debacle.   A 'snitch rule' requires jurors to report to the judge 
anytime serious misconduct occurs during deliberations.  

This allows a judge to replace the offending juror so that new deliberations 
can take place without inciting the public and without the expense of 
restarting the trial from scratch.  This COULD be the law in every state -- 
but don't hold your breath.

The truth is, the defense bar loves exploiting prejudice -- when it works to 
the advantage of the perpetrator -- so they're not going to fight for the 
kind of reform that might take an arrow out of their quivver -- even if it 
means subjecting guys like Christopher McCowen to the most vile of hate in 
the name of justice.  

Wendy Murphy
New England School of Law
617-422-7410