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.
Last week, the CCA reversed a conviction out of Wayne County – finding that there was insufficient evidence to convict the defendant of manufacturing meth and “crooks with guns.” Since these cases don’t come along too often – here’s the breakdown.
In State v. Christopher Hammack, the Defendant was charged with three counts: manufacturing meth, possession of a firearm during the commission of a dangerous felony, and felon in possession of a firearm. Possession of a firearm during the commission of a dangerous felony, or “Crooks with Guns” as it is colloquially known, requires mandatory consecutive time, so Hammack was looking at a lengthy sentence after conviction.
Hammack was arrested after Waynesboro police executed a search warrant on the home of a man named McClain. Hammack and McClain were associates and the affidavit to the search warrant indicates that Hammack had assisted McClain in selling guns, but doesn’t give additional details. Police executed the search warrant, knocking on the exterior doors of the house for 15 to 20 minutes. After a period of knocking, they saw Hammack and a large pit bull in the living room of the house. Police instructed Hammack to secure the dog, he did so, and they entered the house. They found six guns in various locations around the house. Many of the guns were in plain view – one on the dining room table and several on a bed in a bedroom.
Police completed the search of the house and turned their attention to the outbuilding, which contained remnants of a recent meth cook. It had all the typical goodies: salt, coffee filters, plastic gloves, ammonia nitrate, generators, batteries, Sudafed, funnels, aluminum foil, etc. The lab was believed to be “a couple of days old.” Hammack admitted he knew meth was being cooked in the shed, that he had smoked meth the day before, but denied any knowledge about where the guns came from.
During cross-examination, police admitted they had not seen Hammack anywhere beside the living room and that he was unable to access any of the guns from where he was seen. Police didn’t know if Hammack was present several days earlier when the cook actually occurred or if he had been involved. No items from the cook were found in the residence. Police acknowledged Hammack did not live with McClain, and they did not fingerprint any of the recovered weapons.
Hammack told another officer that he had come over to take a shower. The Defendant’s father testified that Hammack lived with his parents and he relied on Mr. and Mrs. Hammack for transportation. He knew his son went to McDonald’s and the store to buy milk almost every day leading up to his son’s arrest, but that his son didn’t go anywhere other than to visit a neighbor. (The Opinion doesn't say whether Mr. Hammack was asked if the family had a working shower - that would have been my FIRST question.)
There was some discussion between the Judge and counsel regarding whether a guilty verdict in the Crooks with Guns charge would automatically result in a guilty verdict for being a Felon in Possession.
In Tennessee, the Initiation of the Process to Manufacture Meth statute reads as follows: “It is an offense for a person to knowingly initiate a process intended to result in the manufacture of any amount of methamphetamine.” T.C.A. 39-17-435 (a). Facilitation has the following definition: “A person is criminally responsible for the facilitation of a felony, if, knowing that another intended to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.” T.C.A. 39-11-403. The Sentencing Commission has clarified that a facilitator “lacks the intent to promote or assist in, or benefit from, the felony’s commission.”
The CCA found that there was no proof that Hammack substantially assisted in the manufacture of meth, because the evidence showed that the meth was made approximately two days prior to the execution of the search warrant. Even if he knew it was being made on the property, there was no proof Hammack had been in the shed where the cook occurred. From there, the rest of the charges fall like dominoes. If there was insufficient proof that Hammack was promoting meth, then he couldn’t have possessed a firearm during the course of that felony. The court declined to examine whether the FACILITATION of the initiation of meth would be a dangerous felony. Lastly, because count 3 wasn’t sent back to the jury for deliberation, and because the Court simply ruled that if count 2 was sustained, then count 3 must also be sustained, the Defendant was not entitled to a jury finding on that case, and therefore it must be reversed. And, Double Jeopardy protections mean that Hammack cannot be re-tried on count 3.
This was only an eleven-page opinion, but it gave concise logic on an issue that the court really could have skimmed over. Read the full opinion HERE.
P.S. – If you loved or hated the bluebook, you might be interested in this article. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/03/judge-richard-posner-says-we-should-burn-all-copies-of-the-bluebook/
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