Making a Murderer

The Constitution of the Commonwealth of Pennsylvania affords the defendant, Charles David Cooper, the protection of his peers from the prosecution of the state, and you, jurors, are that protection.

Memory is a flawed device, as courtrooms have demonstrated many times. But the words above, or something close to them, have stuck with me for the last 47 years. They were part of the oath I took, at the age of 22, to serve as Juror Number 11 in a capital murder case in Philadelphia. There were ways I could have avoided serving on a jury, but I felt it was important to do, and I welcomed the experience — until those words gave me a cold chill.

Courtroom-000060085988_Medium - CopyWe jurors were sequestered under strict conditions throughout the trial, which lasted a week. We could have no contact with the outside world. Letters out or in were read and censored. (My girlfriend’s letters to me were confiscated until after the trial, because she joked in each one about her sneaking in or my sneaking out of the hotel.) Any necessary phone calls were made by a court officer, who conveyed the messages back and forth.

Charles Cooper was 18 when, according to the state, he shot a small-hotel owner to death in a robbery. Now, two years later, he was on trial for his life. I am certain that not a single one of we 12 jurors took our responsibility, to be his protection, lightly. If we had convicted him of first-degree murder, the trial would have gone into a penalty phase in which we would deliberate again, on life or death.

It was clearly a first-degree case under the felony-murder rule, and 11 of us believed from early in the deliberations that Cooper had done it. The 12th juror eventually became convinced as well. He said he just wanted to hold out for a while to make sure we weren’t railroading him. But several of the jurors just couldn’t bring themselves to deliver a first-degree verdict on a 20-year-old who had been 18 at the time of the crime. He had testified, so we got a chance to see and hear him. He was a real person, who had turned himself in to the police at his minister’s house.

Most of my fellow jurors didn’t believe that we really had the power to save his life if we said those awful words: Guilty of murder in the first degree. So we convicted the young man of murder in the second degree. He may have had a shot at a new life around age 40, but a Google search on his name yields no information.

This was a case where the existence of the death penalty resulted in a more lenient penalty than the letter of the law called for. But I think it was a fair penalty in the spirit of the law.

That is, assuming that Cooper committed the crime. I’ve now completed watching all 10 episodes of Making a Murderer, the Netflix documentary about Steven Avery, who served 18 years in prison for a sexual assault he didn’t commit, was exonerated by DNA evidence, and then was accused and convicted of a brutal murder. As I mentioned last week, I had researched and written about Steven Avery as part of a sermon I gave in October 2013.

Steven Avery
Steven Avery

At the time of my sermon, I was focused on the faulty memory of the victim in the sexual assault case, and I bought the idea of Avery’s guilt in the later murder case. His developmentally impaired nephew, Brendan Dassey, had confessed to being Avery’s accomplice. The 16-year-old Dassey seemed like an easy mark for Avery to have enlisted in the crime. Having now watched Making a Murderer, I realize that my skepticism should have kicked in. It’s clear from the videos of the nephew’s “confession” that it was even easier for the local investigators to lead Dassey to confirm the details they wanted him to confirm. If Avery has been wrongly convicted again, he has now spent 28 years of his life behind bars for two crimes he did not commit, and Dassey has served almost 10 years for one crime he did not commit.

What’s important in cases like this, as Kathryn Schulz explains in the January 25, 2016, New Yorker, is not the guilt or innocence of these two men, but how the system of justice in the United States is stacked against those the police decide are guilty, especially if they lack the resources for an expensive defense. She writes:

Seventy-two per cent of wrongful convictions involve a mistaken eyewitness. Twenty-seven per cent involve false confessions. Nearly half involve scientific fraud or junk science. More than a third involve suppression of evidence by police.

The presumption of innocence seems to exist only for the rich. What happened to Steven Avery and Brendan Dassey is not unusual. What happened to Adnan Syed, subject of the first season of the Serial podcast, is not unusual. I hope that is was not what happened to Charles David Cooper.

And how can we continue to uphold capital punishment in a flawed justice system?

— Mel Pine (Fearless Lotus)

NOTE: If you’re wondering how I got onto a capital murder jury when I don’t believe in capital punishment, I was aware of the recent Witherspoon ruling of the U.S. Supreme Court. It held that citizens could not be excluded from a jury in a capital case unless they had religious or moral convictions that would prevent their voting for the death penalty. I believed I was capable of voting for the death penalty if given clear instructions on when it should apply (which, of course, I was sure I would not get). So I answered “No” to the question about religious or moral convictions that would prevent my voting for the death penalty.

Copyright 2016 © Mel Harkrader Pine

4 Comments Add yours

  1. I would submit that we can’t uphold capital punishment, but then I’ve never really been in favor of it. I’m uncomfortable with the state having that kind of authority, especially when we convict the wrong person so often.

    Liked by 2 people

    1. melhpine says:

      And I just started thinking today about the position capital punishment puts jurors in. That’s another reason it’s wrong.

      Liked by 2 people

  2. amiezor says:

    I like your note on moral and religious convictions. However, if everyone on a capital punishment jury believes in capital punishment from the staring line, then isn’t the deck a little stacked?

    Liked by 1 person

    1. melhpine says:

      Before Witherspoon, anyone who opposes the death penalty could be excluded for cause from a jury in a capital offense. After Witherspoon, people could not be excused for cause unless their beliefs prevented them from voting for the death penalty. I think that’s still the case, although the “religious or moral” component may have been dropped. You will not be able to serve on a jury in a capital case of you don’t feel that you’re capable of voting for the death penalty. On the morning that Charles Cooper testified, after we were led into the jury room to break for lunch, one woman broke into sobs and put her head on her hands on the table there, saying “I don’t have religious or moral beliefs against the death penalty, and I tried to tell the judge that I couldn’t do it, but he wouldn’t listen.”


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