With Elizabeth Holmes’s criminal trial winding down, the fate of the Theranos founder will soon rest with the jurors. When the outcome is known, there’ll be no shortage of detailed analyses and critiques from a variety of experts.
I say this as a law professor who teaches the rules of evidence and has written often about the Holmes case. I’ve analyzed defense strategy, the judge’s rulings, the way certain aspects of the trial reflect unfortunate quirks of evidence law, and how the case illustrates the meaning of the presumption of innocence. But I haven’t been present in the courtroom, and with nothing but news reports to rely on, I wouldn’t purport to have any idea how the trial is going. Or whether Holmes is guilty.
Yet in the case of prominent defendants, too many people often think they know.
Pick a name: Jussie Smollett. Ghislaine Maxwell. The trials to which the news media give prominence evoke strong responses from the public. Did Kyle Rittenhouse act in self-defense or did he get away with murder? Lots of people tell pollsters they’re certain of the answer, and one side or the other is surely right, but few of those surveyed were present to hear the evidence.
That’s where the difficulty arises. In the sobering words of Alonzo Harris: “It’s not what you know. It’s what you can prove.”
In a criminal trial, the point can be made even more strongly: It’s not what you know. It’s what the prosecution can prove, within the rules of evidence and beyond a reasonable doubt.
Sure, some outcomes represent outrageous miscarriages of justice and deserve the opprobrium heaped upon them. Demonstrators taking furiously to the streets need not be taken as representing the dawn of mob rule.
But anger can be mistaken. Most easy cases never go to trial. The charges are dismissed (or, more likely, never brought), or the defendant pleads guilty. Those that are tried tend to be tougher to prove. Often they turn on small nuances — the day-to-day effect upon the jury of this bit of uncertainty in the testimony of a key witness, or that snippet of video that’s less clear than it first appears. People are entitled to their opinions, but all too often those opinions are informed less by events in the courtroom than by commentary on cable news and social media.
With that in mind, I’d like to offer a few guideposts on how to think about jury verdicts.
First, a person might commit a terrible act without breaking the law. The sharp severance of legality from morality is crucial to life in a free society. I can strenuously disapprove of your conduct without insisting that you go to prison for it.
Second, even if the defendant broke the law, the prosecution might not be able to prove the case beyond a reasonable doubt. It’s not the job of the defendant to prove innocence; an acquittal can follow from the mere fact that jurors are left unsure about a handful of key points.
Third, no one who hasn’t been in the courtroom every day can be sure what impact specific testimony, physical evidence and cross-examination have had on the jurors. It’s difficult to say how effective the lawyers have been until the jury brings in the verdict.
All of these are reasons for humility in evaluating a verdict we don’t happen to like — or, for that matter, one we do.
True, humility isn’t everything, and there’s no point in being naïve about this: Human dynamics matter. Some lawyers are better than others. Privately retained counsel will often do the best job, but public defenders perform much better than appointed counsel.(1) And skill matters. An effective cross-examination, for example, can have a distorting effect on a witness’s theretofore truthful memory.
And it cannot be gainsaid that trials are all too often marked by America’s searing experience of race. Juror bias in favor of White defendants is well established. One recent study provides strong evidence for the proposition that the same bias toward White defendants exists even among non-White jurors.(2)
There are gender effects too, and anyone following the Holmes case can’t help but wonder what role they might be playing with jurors. But there’s a difference between refusing to be naive and yielding to the temptations of cynicism. America can rely on the jury system or abolish it. As long as juries remain society’s tool for determining whether the defendant is guilty, however, we should do our best to respect their verdicts.
I am sure I will have something to say when the Holmes trial ends; I may even have a few criticisms. If I do, I will try to be mindful — and so should you — that I wasn’t in the courtroom to hear the evidence.
(1) One reason is surely that appointed counsel have perverse financial incentives.
(2) We also know that judges are more likely to sentence Black defendants than White defendants to prison for the same offense, although there is no difference in the severity of sentences.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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