Sunday, March 17, 2019

Prosecutor's Bad Math And Lack Of Defense Objection Leads To Remand

The Georgia Supreme Court vacated and remanded the malice murder conviction of two parents accused of the crime when their apparently healthy newborn returned to the hospital within hours with fatal injuries. 

At discharge

There were no signs that the baby was unhealthy or in distress. The Debelbots took McKenzy home and provided the sole care for the infant for the next 13 hours, during which time — according to the Debelbots — they fed and played with McKenzy, changed her diaper, and gave her a bath. In the early morning hours of June 1, the Debelbots took McKenzy to the hospital after noticing a bump on her head. McKenzy died a few hours later.

Neither defense counsel objected to this closing argument

During its closing argument, the State made the following argument about  reasonable doubt:

The Judge will charge you on reasonable doubt. Just keep in mind, and he will charge you, reasonable doubt does not mean beyond all doubt. It does not mean to a mathematical certainty. Which means we don’t have to prove that ninety percent. You don’t have to be ninety percent sure. You don’t have to be eighty percent sure. You don’t have to be fifty-one percent sure. It does not mean to a mathematical certainty.

And it does not mean beyond a shadow of a doubt. That’s just something the TV made up. It’s actually beyond a reasonable doubt. And that would be a doubt to which you can attach a reason. And I submit to you there is no reasonable doubt in this case.


The Debelbots, who were represented by different trial counsel, both allege that their respective trial attorneys were constitutionally ineffective in several respects; Ashley also asserts direct error by the trial court. While we are deeply troubled by at least two of the claims of ineffective assistance of counsel, we conclude that the nature of the order below prevents us from reviewing meaningfully the most significant alleged deficiency by trial counsel for both Ashley and Albert — their failure to offer an alternative explanation for McKenzy’s injury. Accordingly, we vacate the court’s order denying the Debelbots’ motion for new trial and remand for further proceedings.

Experts were called at the motion for a new trial

the experts testified that McKenzy suffered from a vascular event in utero that caused the bleeding in her brain and this event was the cause of her death. The experts also testified that the right side of McKenzy’s skull was malformed, including that a piece of skull was missing, and concluded that a portion of McKenzy’s brain matter was missing. The experts further opined that the trauma of the birthing process caused the additional and more acute fracturing to the left side of McKenzy’s skull, and denied that post-birth trauma caused McKenzy’s injuries. The State offered Dr. Darrisaw and two other experts in response, who disagreed...

First, the court concluded in one sentence that all the Debelbots’ witnesses, expert and otherwise, were not credible. And second, the court concluded that all of the Debelbots’ medical evidence was inadmissible under our decision in Harper. As we explain further below, the sweeping nature of these conclusions precludes our meaningful review at this time, requiring that we vacate and remand for more precision.

As to the prosecutor's bad math

We also note our serious concern regarding the State’s closing argument during trial that flatly stated that proof beyond a reasonable doubt in this murder case does not require the jury to be even 51% sure— in other words, requires less than even the preponderance of the evidence required to meet the burden of proof in a civil case. That is obviously wrong. A case like this one, where there was no direct evidence to prove that Albert, Ashley, both of them, or neither of them killed McKenzy, could turn on reasonable doubt, and the verdict could be affected by an argument that 50-50 proof is good enough. And the trial court’s jury instruction on reasonable doubt — which in many cases may cure previous misstatements on the subject — did not cure the State’s obviously wrong argument here. The State’s point was to define reasonable doubt as not requiring the State to prove its case to “a mathematical certainty” – a phrase the State repeated twice. Of course, that is a phrase that occurs in the pattern instruction as well, and so when the trial court gave that instruction, it may well have been understood by the jury not as correcting the State’s error, but as reinforcing it. We cannot conceive of any good reason that a competent criminal defense attorney could have to fail to object to such an egregious misstatement of the law.

Justice Bethel concurred

Proof beyond a reasonable doubt is the highest standard of proof recognized in our system of jurisprudence. While it is true that there is no mathematical component to the standard, that description is better understood as preventing the bar from being raised too high rather than permitting the bar to be lowered. The State’s closing argument invited the jury to apply a significantly lower standard, which is repugnant to our system of criminal justice and its requirement of proof beyond a reasonable doubt to support a conviction. Indeed, under the State’s proffered paradigm, if the jury thought it was equally possible that Albert acted to harm McKenzy as it was that Ashley had done so, then the jury was authorized to convict both Albert and Ashley. But if two causes of an outcome are equally likely, neither has been proved beyond a reasonable doubt

(Mike Frisch)

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