Friday night at 11pm, the jury in the first retrial of the Vanderbilt rape case returned its verdict. While I wasn’t present, I followed along online, but I suspected that everyone in the courtroom was shocked when the first words out of the foreperson’s mouth were “not guilty.” What? Come again? Cory Batey was found guilty of every count, but only found guilty of one count of aggravated rape. This type of verdict - a compromise verdict - was a shock for a case that with solid video evidence. And isn’t that what every juror wants in 2016 – video evidence? (For the record, I do not know any more about the Vanderbilt than anyone reading this. I’ve got no inside source – I’m only aware of the facts that have been published in the media.)
So, what gives? Why did a jury find Cory Batey guilty of two lesser-includeds of aggravated rape (sexual battery)? Let me preface my opinion by stating that I have no idea if the defense or the State spoke with jurors – so my opinion is pure speculation. While it is pure speculation, it's part of a larger trend that I believe we are seeing. We are early in 2016, but there have been few jury trials in Davidson County where the jury convicted the Defendant as he or she was charged.
This makes me wonder, is the State of Tennessee overcharging defendants (which has the effect of increasing the defendant’s overall exposure potentially forcing him to plead to avoid a big risk - as well as increasing the bond required to get out of jail pre-trial) OR are juries more aware of draconian sentencing laws and more hesitant to convict?
Let’s talk about the rape statute in Tennessee. Rape is unlawful sexual penetration. Tennessee Code Annotated 39-13-501 defines “sexual penetration” as: sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required. The law defining rape in Tennessee is broader than how someone might historically think about rape. Furthermore, if two private parts of the victim are penetrated at the same time (i.e. vaginal and anal) then that is charged as two separate counts of rape. The State of Tennessee can, and does, charge someone with multiple counts of rape from the same three minute encounter, if different genital areas were touched. And in less the case is really egregious, I’m not sure jurors totally agree with that concept. I’m also not sure if jurors think that the “slightest intrusion” is clearly a rape, rather than a sexual battery.
Obviously, jurors are always instructed to follow the law (and they should). But after following a few rape trials during the past couple of months, I began to wonder: do jurors have a hard time accepting the law in Tennessee as it relates to rape? Has the law eclipsed its intent? As my brilliant friend Elizabeth said, "How do prosecutors reconcile this? I think they do it by educating their jurors on each act constituting a different rape. And if the jury returns a verdict inconsistent with that, well the people have spoken. They either change the law consistent with the nullification OR they continue to over charge and under deliver frustrating the victim and the cause."
My other question is whether jurors are more educated on criminal justice issues than they were ten years ago. I’m not talking about the CSI effect; I’m talking about basic knowledge of long sentences and wrongful convictions. During criminal trials, neither the State, nor the defense is allowed to reference sentencing during the guilt/innocence phase. But I think jurors are increasingly aware that an aggravated rape charge is going to put someone away for a very long time. And I think they know that no one is going home if they are convicted of child abuse. So part of my theory with compromised verdicts is that jurors might be compromising to combat draconian sentencing – especially when there is a potential defense that anyone could have ended up in the defendant’s position.
The second part of my theory is that, in the United States, someone is exonerated for a crime they did not commit every three days. EVERY three days. Notably, Tennessee doesn’t have nearly as many exonerees as other states. (Tennessee has 17 exonerations, by the way. 6 for sex crimes and 9 for murder/manslaughter.) Now, is that because we are so much better at dispensing justice? Or is it because of the value that our courts have assigned to post-conviction and innocence cases? Is it because the Tennessee Supreme Court has decided that $1000 is an appropriate sum to pay an attorney to: review an entire case, conduct an investigation (since no funds for an investigator are available), beg someone to serve as an expert witness, write an amended petition, and then conduct a hearing presenting all the relevant issues? Is it because case law in Tennessee doesn’t guarantee the right to counsel during post-conviction? Or is it because we are just really good at getting it right the first time?
What I mean to emphasize is that I think jurors are increasingly aware of the fallibility of our criminal justice system. I think they are more critical of what they are told and who they believe. I think they understand that a conviction is a permanent thing – like that “Nickelback” tattoo you got on your arm while Spring Breaking in Cancun. It’s going to cost a lot more to remove than what you originally paid for the thing, it’s going to take much longer to remove, and it’s going to hurt. Plus, you’ve got to answer a lot of questions about your relationship to Nickelback in the meantime.
I’ve got no idea why the Vandy jury came back with the verdict they did. And I’ve not seen the evidence, so I can’t even tell you if they followed the law or not. But I do believe jurors are more thoughtful, and unpredictable, than we could imagine.
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