Saturday, May 5, 2007

Judge Sentences Garbles

There’s a Shania Twain song, “What made you say that?” It could have been the theme song of Judge Silverman's closing instructions to the jury in the Dennis Knibbs murder trial. Silverman later recalled the jury, telling them that there were several “mistakes or slips of the tongue that I have made and will attempt to correct.”

There was room for mistakes though. There was built-in redundancy in his instructions which lasted four hours (that’s after 2 hrs. worth of lunch and coffee breaks are subtracted). He kept circling back to key points that the jury would have to remember in the jury room.

The defense of “self-defense”: If it fits, you must acquit

Judge Silverman told the jury that in determining whether Knibbs was guilty of murder, they had to consider the defense of “self-defense”. If it fits, you must acquit. That the gist of his message.

In explaining self-defense, the judge told the jury that the law allows Knibbs to defend himself, or someone under his protection, from assault as long as he doesn’t use excessive force. Was Knibbs’ cousin Ian Liscombe under his protection? Knibbs had just watched Liscombe shot in the abdomen by Ekoh Habib who Knibbs is accused of then shooting.

First mistake:

Towards the end of his instructions, Judge Silverman had told the jury that they could consider not only whether Knibbs had been acting in self-defense but whether Ekoh Habib had been acting in self-defense when he fired the first shot. Both the defense and the prosecution agree that Habib fired the first shot after Liscombe was attempting, first alone and then with Knibbs’ help, to push open the door of the room in the New Wings Hotel where he was staying

The judge’s instruction to the jury, Orris argued, “gets into the question of whether Mr. Habib was the one acting in self defense from Mr. Knibbs or Ian [Liscombe] and this was not something that the law required they consider. “I better tell them not to pursue that analysis” said Silverman. And he did tell the jury just that.” “Whether or not Habib was acting is self-defense: take that off your radar.”

Recipe for murder

The judge explained to the jury that there are “five ingredients” in murder. The prosecution has to prove to you that all five ingredients are present, or they haven’t made their case that Knibbs is a murderer. You have to be convinced beyond a reasonable doubt that the prosecution has given all five of the following ingredients, or the prosecution hasn’t made their case for murder.

  1. identity of Mr. Knibbs as the offender, the “shooter” of one of the guns.
  2. time and place of the events
  3. Mr. Knibbs committed an unlawful act
  4. An unlawful act caused the death of Mr. Habib. “Certainly the shotgun caused his death”, the judge added.
  5. Knibbs either meant to cause the death of Mr. Habib or meant to cause bodily harm that Mr. Knibbs knew would cause death and was reckless about whether it caused death.

If all five ingredients are present – you mustn’t have doubts about even one – you can consider Knibbs a murderer.

But it ain’t over ‘til it’s over. Even if you conclude that you have all five ingredients that make Mr. Knibbs a murderer, Judge Silverman told the jury, you can knock his conviction down from murder to manslaughter – if you are convinced he was provoked by Mr. Habib.

Two more mistakes:

As the judge repeated his instructions to the jury, he told them that if you have a doubt about whether you have even one of the five ingredients for murder in the case of Knibbs, “you will find him guilty on both counts”, murder and manslaughter. Ooops! He should have said “not-guilty”, he told the jury after Orris brought it to his attention.

Judge Silverman also told the jury that if you find beyond a reasonable doubt that the first four ingredients are present but not the fifth, “go on to manslaughter”. “Not correct,” Silverman admitted, when Orris drew it to his attention. If you have a reasonable doubt on ingredient 1,2,3, or 4, Silverman explained, “the result is not guilty on both counts.”

Defense lawyer couldn’t believe his ears

When Orris first pointed out one of the mistakes to Judge Silverman, he indicated that he didn’t quite believe his own ears. He told the judge that he thought he might have heard it wrong. Orris was listening to Silverman explain to the jury that Crown prosecutors had to have convinced them that they had the five ingredients in this case before they could find Knibbs guilty of murder.

Fourth mistake:

The first of the five ingredients is of course, Judge Silverman told the jury, that you have to know the “identity” of the shooter. “I don’t think you’ll have much trouble finding that”, he noted. Did Orris hear that correctly? The judge checked the transcript and confirmed that he had in fact said, “You’re not going to have any trouble determining the identity of the shooter.” I can’t believe I said that, Silverman said, as Knibbs watched. “I’ll correct that.”

A few minutes later, Silverman told the jury, “This one was a straight slip of the tongue” and a “serious one.” He said emphatically, “If I said that, I’m pulling that back.”

It was the drugs talking

Judge Silverman would no doubt be the first to admit that he’s not perfect. He’s the judge who reminded the jury twice that experts are "not deities" . They can make mistakes, he cautioned.

At least Judge Silverman was non-defensive when his inconsistent statements were brought to his attention -- unlike witness after witness in this case who excused their own inconsistent statements by saying, ‘Don’t blame me; it was the drugs talking’.

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