Can a Coin Toss Determine Guilt?

Proof "beyond a reasonable doubt" is a sacrosanct tenet of American jurisprudence.

Surprisingly, the sacrosanct tenet of American jurisprudence that demands "proof beyond a reasonable doubt" for a person to be convicted of a crime and thereby deprived of life or liberty cannot be found in the Constitution. It has been, however, determined by the U.S. Supreme Court, In re Winship (1970), to be the constitutionally required standard of proof, dating as far back as 1798. That Court, pointing to Davis (1895), revisited an injustice where a trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced. Yes, you read that correctly: "equally balanced"—50/50—tied—a draw—even Steven—because that was presumably sufficient to convict someone of murder. Thankfully, the High Court in Davis disagreed, stating, that "[o]n the contrary, he is entitled to an acquittal of the specific crime charged, if upon all the evidence, there is reasonable doubt..." In other words, a coin-toss is not how justice is handed down in the United States—with the exception of New Mexico, who apparently never received the memo that fifty-fifty is no bueno when convicting someone of murder.

As many of you are undoubtedly aware, for decades I have been fighting my wrongful conviction without ever having had access to the entire transcript of my trial proceedings. Which, the best way I can describe such an endeavor, is to say that it has been a lot like finding your way through the dark in a place you've never been, which is: discouraging, yes—impossible, never—improbable, highly. Recently, however, the tides shifted, the law was momentarily upheld, and lo and behold a digital copy of the very record that was said to no longer exist—appeared like mana from the sky—and has become the sole focus of my attention.

Initially, I admit, I was disappointed to see that all the jury instruction discussions had apparently been held "off-record" and then conveniently never memorialized when the attorneys and the judge came back "on-record." The same happened when it came to the judge giving his verbal instructions to the jurors—all "off-record"—which certainly made me smile, because as the adage goes, "if it's not difficult, then why are we even here?" But, I also admit, I'm surprised that it's even within the discretion of the trial court to discuss and give jury instructions entirely off the record. What's the point of having a "record" if at crucial points of the supposed "fair" trial everything is discussed and negotiated in such a way that no member of the public, appellate court, or even another branch of the government can look to see if a defendant's rights were upheld and laws were followed?

On the one hand, if you're a trial judge and you don't want a case overturned because of a bad or otherwise confusing jury instruction, the best way to accomplish that is to make sure that it's all done "off-record." But, on the other hand, it does seem a little a counterintuitive to the supposed agenda of justice, to have the very discussions and instructions given to jurors—i.e., the most crucial element of the American justice system—done in secret. While technically, it wasn't done in secret because there were people in the courtroom (including me), but when it's intentionally not placed on the record it seems like the intent is to make sure that future appellate attorneys and courts are unable to decipher the legality of what took place. And for the defendant who is sitting there, knowing nothing of the law, but later learns that something that was said or done was, in fact, illegal, it places an unnecessary burden of proof on the defendant to demonstrate to future courts what was said or done in violation of any rights guaranteed under Due Process.

Jury instructions are not insignificant details, they are the quintessential mechanism that inform the jury on the elements of the crimes charged and the relevant laws applicable to those charges and to their duty as citizens and jurors in a republic where the State carries the burden of proof beyond a reasonable doubt. Bad, misleading, or otherwise confusing instructions are not uncommon, and in a situation where life and liberty are at stake, they should not be decided upon in the shadows—especially if there is nothing to hide.

In my own case, I was present and accounted for when the jury instructions were discussed. I don't recall the judge having decided to entertain those instructions off-record, but that's apparently what took place. My recollection of those events is obviously not perfect. What I remember, however, was an argument initiated by my attorney Joseph Riggs over the armed-robbery charge standing independent from that of the felony murder charge because of double jeopardy concerns. The court responded that, "since one of the state's theories is that the armed-robbery could have taken place as a separate event from that of the murder" the court would allow the charge to stand on its own. The judge then went on to explain that his reasoning was based on the theory that crimes are sometimes "non-unitary" and cited a legal precedent that I don't remember, but based on my limited understanding of the law today, he was most likely discussing the Contreras case (1995), since that was then the holding case on felony murder, where it was then determined permissible for a defendant to be convicted separately for both the predicate felony and the murder given that the crimes were deemed "non-unitary." A determination later overruled by a subsequent decision in Frazier (2007), where it was determined that "the predicate felony is always subsumed into a felony murder conviction, and no defendant can be convicted of both." All of which is relevant is because what the record clearly demonstrates is that the State didn't meet its burden of "proof beyond a reasonable doubt" for the charge of armed-robbery or, by extension, felony murder.

Obviously, with no record of what was discussed or determined as it related to jury instructions I'm at somewhat of a disadvantage, but I have come to expect nothing less.That being said, since I was present in the courtroom I know what happened, and therefore I'm moderately optimistic that what the record does show, coupled with logic, will still demonstrate the absurdity of the charges and convictions currently detaining my liberty and life. All of which begins and ends with the State's burden of proof beyond a reasonable doubt.

According to a contemporary article published in the Loyola University of Chicago Law Journal (2021), "[a]bstract proof beyond a reasonable doubt has been de rigueur in criminal cases almost since the dawn of the republic." The authors, Hon. James A. Shapiro and Karl T. Muth, discuss how jurors constantly ask for the courts to define "beyond a reasonable doubt," and they explain that while some jurisdictions permit such a definition to be given, other jurisdictions require it, and still others forbid it. In New Mexico, the courts themselves have disagreed on numerous occasions on this very point of contention.

The New Mexico Court of Appeals has ruled that such a high burden of proof requires the jury to be in "a subjective state of near certitude" or a "moral certainty" (quoting the U.S. Supreme Court) which it defined as "the highest degree of confidence with which an historical or physical fact can be known." And while, the New Mexico Supreme Court didn't exactly disagree with the lower court's assessment, it has stipulated that the current UJI (Uniform Jury Instructions) is sufficient in defining the standard for jurors. In the written jury instructions provided to the jurors in my trial (Jury Instruction No. 2) reasonable doubt was explained as follows:

The burden is always on the state to prove guilt beyond a reasonable doubt. It is not required that the state prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.

With this standard in mind, and, in using the same standard of "reason and common sense," the State couldn't possibly have met its burden of proof as it came to the contentious issue of the alleged armed-robbery. At trial, a stipulation was agreed upon and read to the jury at the onset of the trial regarding the victim's missing wallet. The judge read to the jury, on-the-record, the following:

[The victim's] wallet, which was on his person at the time of his murder, was located in the men's locker room at the Jewish Community Center in Tucson, Arizona on August 19, 2004. It was placed in the lost and found box. On August 25, 2004, it was turned over to the community center employee Joseph.

Miss Joseph called [the victim's] home from a number found in the wallet and spoke to [the victim's spouse], who in turn relayed this information to Bernalillo County Sheriff's detectives. Detectives from the Bernalillo County Sheriff's Department went to Tucson to recover the wallet.

While there they spoke to Mario Chavez's wife, Nicole Chavez, and father-in-law and former business partner Dennis Melin. Ms. Chavez and Mr. Melin denied any knowledge of the wallet or how it ended up at the Jewish Community Center. Although, Dennis Melin did state that he and his wife had visited the community center on the day the wallet was found.

It's important to note that it was also clearly demonstrated and never contested at trial that the relationship between myself and my former spouse and her father was contentious before the case ever occurred. We were separated, living separate lives in separate cities (and sometimes countries). Her father, Dennis Melin, had been my business partner for years, but in July of 2004, we parted ways from all our business dealings. Our communications at the time of these events were contentious and open threats from this man had been made against my life. All of the detectives knew this because they had access to our e-mail communications. All of which is relevant because neither of these individuals were people who would have lied to the police about their knowledge of the wallet to protect me. They would only have lied to protect themselves.

What the agreed upon stipulation meant as a matter and issue of proof regarding the victim's wallet meant that the prosecution was admittedly never going to prove how the wallet got from the victim's pocket to a locker room in a different state where the defendant's enemy admittedly was on the day the wallet was discovered. Which isn't to say that the state needed to prove the travel itinerary of the wallet to demonstrate that the crime of armed-robbery had occurred. The jury could easily conclude through the circumstantial evidence that if Person A kills Person B, and Person B no longer has his wallet, after the fact, then presumably Person A took the wallet. But, the taking of the wallet wasn't all the state needed to prove when the crime charged was armed-robbery; it also needed to prove that the wallet was taken with use of violence or force.

Let's assume for a moment that you're called up for jury duty. The case presented, offers the following information:

A man was killed in a vacant house and his wallet was taken. There are two potential killers (Person A and Person B), both having admitted to being present at the residence. The evidence clearly demonstrates that there were no less than two visits made to the vacant residence, but the testimony and evidence gathered could not demonstrate at what point or under what circumstances the wallet was taken. The state's theory on the murder is that the victim was killed at the first visit to the house by Person A. Person A then departed from the house and drove 3.3 miles to retrieve Person B from a nearby shopping center and shortly there after they returned in tandem to the residence (Visit 2). The state then suggests that at this point the victim's body was moved by Persons A and/or Person B from one room of the house to another.

The state's theory was based on the testimonial statements made to the police by Person B when he was taken into custody. Its theory was reinforced by the testimony of a forensic expert who suggested that the victim's blood on the floor where he was killed suggested that the victim wasn't moved immediately after being killed, but could not establish with exactitude whether that period of time was a matter of moments or minutes because of numerous unknown factors involved.

In the state's closing arguments it simply presents the facts that the murder occurred and the wallet was missing; therefore, armed-robbery must have occurred.

Now, if you were on this jury, did the state meet its burden of proof beyond a reasonable doubt that an armed-robbery took place? But, before you answer, take a moment to review the exact elements the state had the burden to prove:

Jury Instruction No. 7

For you to find the defendant guilty of Armed Robbery as charged in Count 2, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant took and carried away a wallet and/or its contents from [the victim] or from his immediate control intending to permanently deprive [the victim] of the property; the wallet and/or its contents had some value;

2. The defendant was armed with a handgun;

3. The defendant took the wallet and/or its contents by force or violence;

4. This happened in New Mexico on or about the 16th day of August, 2004. |

Obviously, there are lots of unknowns and without having sat through the entire trial or having read the entire trial transcript it might seem imprudent to give an opinion. Nevertheless, allow me to focus your attention on the third element of the above instruction, and then ask you the following question, to be answered with the same "reason and common sense" the law requires: if nothing more than the agreed upon stipulation (as seen above) is known about the wallet, did the state prove beyond a reasonable doubt that the wallet was taken by force or violence? In answering, keep in mind that the state never even offered an opinion at trial as to whether the wallet had been taken at the first or second visit—assuming, of course, that those are the only two possibilities.

Common sense and reason indicate that it was impossible for anyone to know—much less the jury, who was charged with making the determination—at what point the wallet was taken. There were two possibilities, equally as probable, and there was no way to know when the wallet was taken. Relevant because, if the wallet was taken at the second visit and the murder took place at the first (as the state suggested), then the taking of the wallet couldn't legally have been armed-robbery because force or violence can't be used against someone who is deceased. Courts in virtually every jurisdiction (including New Mexico) agree that the crime of armed-robbery can't be committed against a dead person. At most, the legal liability of the defendant would be that of larceny (NM Stat. 30-16-1); which, in New Mexico is a petty misdemeanor, and under no circumstances could it qualify as a dangerous felony that could elevate second-degree murder to that of first-degree felony murder.

Which means, that when the defense renewed its motion for a directed-verdict, following the off-the-record discussion on jury instructions, the court should have granted that motion as it pertained to armed-robbery and felony murder charges because the state did not meet its burden of proof and thereby couldn't seek a verdict for either. While a jury's reasoning for findings of guilt or acquittal are sacrosanct and unreviewable, the court is tasked with ensuring that the state meets its burden of proof beyond a reasonable doubt, a standard and burden that was not met in this instance, to prevent juries from deliberating on crimes unsubstantiated by evidence.

Even the most diligent and sincere of jurors could not have determined that a wallet was taken by force without knowing when the wallet was taken. Yet, based on the entirety of the jury's signed verdict forms, the jury determined that not only did an armed-robbery take place, but the murder likewise took place in the commission of that robbery. And it determined that the defendant acted with the mens rea of first- and second-degree murder simultaneously—i.e., the defendant acted with and without the essential element of deliberation. None of which is meant to suggest that the jury failed to act with reason or common sense. The jurors simply followed the written and verbal instructions from the court, and even though they got it wrong it wasn't their fault. The court should never have allowed them to deliberate on a charge when the state's burden of proof was not met. Which brings us to the jury instruction discussions held "off-record."

Although I generally agree with the maxim that assumptions make an ass of everyone, I assert that the trial judge (Hon. Richard T. Knowles) is not an idiot. I listened to his to reasoned rulings for three weeks, and though he was short-tempered and often seemed more concerned with brevity over substance, he did appear to adhere to the rule of law. Which means, that when he denied the defense's directed-verdict motion, I don't believe he would have done so had he realized that the state had failed to meet its burden of proof. At the time of my trial, New Mexico courts hadn't yet addressed the issue of whether it was legally possible to commit armed-robbery against a dead person, even though the legislature clearly expressed such an impossibility in its definition of the crime. And, his focus was not on the clear meaning of text that describes the crime of armed-robbery, but rather on the legal precedent that pertained to armed-robbery in relation to felony murder as a double jeopardy concern—i.e., State v. Contreras (1995), where the Court had determined that armed-robbery could be punished separately if it was a non-unitary event from that of the murder—and since he understood that the state had never demonstrated at what point the wallet was taken, in his mind, if the jury reached a guilty verdict, he intended to uphold the Contreras precedent and convict and sentence me accordingly, which was precisely what he did. Was the court wrong and legally out-of-bounds? Yes. Was the court so far out-of-bounds that fundamental error occurred? I don't know.

Legally speaking, to be convicted of a crime that didn't occur is fundamental error. In this case, the man's wallet was obviously taken but the element of whether or not the wallet was taken by force or violence cannot be determined by the evidence unless we are willing to flip a coin and let a defendant's luck and chance make that determination. And such an action has long since been ruled as "unconstitutional" by this nation's Highest Court, which brings us back to the fact that fifty-fifty is no bueno. Juries are a quintessential element of what makes a trial fair in this country. But, if they are not instructed properly or given liberties that the law does not permit—such as, flipping a coin to make a determination—they cannot be expected to live up to their duties as jurors and citizens in a republic where the state carries the burden of proof beyond a reasonable doubt. Moreover, when the very discussions about the instructions they are to be given are held "off-record" that should make us question whether any part of a legal proceeding where life or liberty is at stake should ever be done in secret. Because if the rule of law is what separates America from the tyrannies of the world, then its courts need to do better.

Top image: Courtesy of Readers Digest