Watch Jim Eat Crow!

OK … attention all hands … this is your Skeptic-In-Residence … secure from general quarters … weapons cold … set condition green … stand down from DefCon 2 … secure from silent running … rig for “noisy running” … crisis over … exit your respective undisclosed locations and resume normal duties ... move the hands of the Doomsday Clock back from two to ten minutes before midnight …

Back in October of 2018, I published a “Skeptic’s Collection” column about the misgivings I have entertained for the past 20 years about the verdict we, the jury, returned in a criminal trial for a man charged with felony possession of a controlled substance. Since then, I have done some research about the precise requirements of the drug possession laws of Washington State – see also this -- and where the burden of proof reposes:  on the State or on the defendant. I learned a lot in the interim. Hence my revised conviction – so to speak – that (1) we, the jury, rendered, a proper verdict; and (2) the relevant Washington State drug-possession statute neither implied or would have justified an act of sua sponte jury nullification in order to prevent adherence to an unjust law. For, contrary to my previous opinion as stated in the above “Skeptic’s Collection” column, the law was not unjust.

In other words … I WAS WRONG.

Consider …

According to Washington Revised Code Section 69.50.4013:

(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.

(2) Except as provided in RCW 69.50.4014 , any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.

This is where matters became – at least in my mind – problematical. The FindLaws web site for Washington State drug possession laws cites, not only the relevant laws about drug possession and ancillary offenses (e.g., possession and sale of drug paraphernalia), but also the criminal penalties associated therewith. It also suggests possible defenses against drug possession charges (italics added):

Possible defenses are -- no doubt, among others -- (1) entrapment (i.e., inducing someone to commit an offense they otherwise would not have committed), (2) Fourth Amendment violations (i.e., "unreasonable search and seizure" and warrantless searches, except for certain exemptions to the "exclusionary rule"), (3) the drugs did not belong to the defendant, or (4) the defendant was not aware of the presence of the material and the material was present without the defendant's consent.

In other words – as I understand the above language – in order to be acquitted of a charge of possessing a controlled substance under Washington State law, and assuming that all other defense strategies fail, a defendant in a criminal trial must mount a defense by arguing that either the drugs did not belong to the defendant and / or that s/he did not know that the controlled substance was there and / or that it was there without her knowledge and consent.

When I read this text before, back in 1995 or 1996, I read the italicized portion to mean that the defendant had to deploy a defense sufficient to convince the jury beyond a reasonable doubt that s/he was not guilty of the crime of possession of a controlled substance. That is where I was wrong.

Is it wrong for the defendant’s attorney to present such a defense to the jury? Of course not. That is, after all, the defense attorney’s job.

Where I erred was in interpreting the law “ symmetrically,” i.e., that it was the responsibility of the defense to convince the jury beyond a reasonable doubt that the defendant was innocent, just as it was – and still is – the responsibility of the prosecutor to convince the jury that the defendant is guilty beyond a reasonable doubt. Had that been the case, then my original objection would stand:  such a law requiring proof beyond a reasonable doubt of innocence no less than guilt would indeed merit at least a hung jury – for I would not vote to convict under that interpretation – or perhaps, if I could convince fellow jurors that it was appropriate to do so, even an act of sua sponte jury nullification of the relevant drug-possession law. Such a “symmetric” interpretation of burden of proof would indeed be inconsistent with our oath as jurors to presume innocence.

Animal Black Crow Silhouette Raven Bird Eat Dark

But – one more time -- I was wrong. The two sets of responsibilities – prosecution and defense -- are not comparable. The law as to burden of proof is not symmetric. Of course the defense has to present a … well … a defense. That is why the defendant is called a defendant. (I am not a strategist in legal argumentation, but I suppose it would be theoretically possible, if the prosecution had an exceptionally weak case, for the defense to present no countervailing argument to evince reasonable doubt in the jury, and thereby to trust that the jury, seeing the weakness of the prosecution's case, would acquit the defendant on the basis of presumption of innocence. But that would be something of a gamble.) And that means evincing in the minds of the jurors only a reasonable doubt as to guilt. From the standpoint of the defendant, reasonable doubt is both necessary and sufficient to justify acquittal. That is a much lower bar than the prosecution’s job of convincing the jurors that the defendant is guilty beyond reasonable doubt. This asymmetry is entirely consistent with presumption of innocence:  if there is reasonable doubt as to guilt, the prosecution’s arguments and evidence notwithstanding, then the principle of presumptive innocence mandates that the jury acquit. That former job the defendant’s attorney did not do – which I say with no insinuation of incompetence or negligence. Even the best defense attorneys lose one sometimes.

In retrospect, I feel rather silly:  I suppose I was reading the principle of presumptive innocence of a criminally charged defendant to mean that the prosecution is supposed to do the defense’s job for it, at least passively and by default. 

So now, unlike the last 20 years or so, my conscience is clear. I am now at peace with our verdict. Crow never tasted so good!

James R. Cowles

Image credits

Missile ready for launch … USAF … Public domain
Jury … Joint Base Charleston … Public domain
Scales of Justice … Mike Kirby … Creative Commons Attribution-Share Alike 2.0 Generic
Crow … MaxPixel … Public domain
Heroin … NeedPix … Public domain

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