In October, I posted about our victory on appeal in the Afshar case, based on the misconduct of a biased juror. After a therapist was convicted by juror of assaulting a young patient in his office, he hired our firm, we conducted an investigation, and we discovered that two jurors had falsely represented during jury selection that they had never been the victim of a crime, when both had been the victim of the same crime that the therapist was accused of - child sexual abuse. We filed and won a motion for new trial based on the juror misconduct, the State appealed to the New Hampshire Supreme Court, and we won that appeal. Subsequently, the State issued a press release that it was dismissing the charges.
The case has made its way into the local and national media, and now it is the subject of a feature in the New Republic magazine. Much of the article focuses on public policy - what should we do to prevent wrongful convictions, when the law permits the conviction of a person for a crime even if the complainant's story is not corroborated? But in my opinion, the issue of whether "corroboration" can be established is a red herring in these cases. The prosecution always tries to put on corroborating evidence. The defense always tries to put on contradictory evidence. The focus should be placed, not on the burden of proof, but on the quality of the jury selection process - do the procedures ensure an adequate background check of every juror, an opportunity for thorough questioning each juror under oath, a diligent and effective attorney for the accused, and a trial judge who has the life experiences and common sense that are required to identify and remove biased jurors? Any trial lawyer will tell you that many if not most cases are won or lost in jury selection.
In our experience, when a truly unbiased and impartial jury is selected, the result is: The jurors keep an open mind and don't prejudge the case, and the trial is not infected by issues like racial bias, gender bias, animus towards certain groups, and ideology-driven decision-making. In our decades of experience, we have found that when an impartial and thoughtful jury is selected, justice almost always prevails.
In the Afshar case, the jury selection process failed, but justice ultimately prevailed. Hopefully, all of us can learn from the experience as we strive to improve and reform the criminal justice system.
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