Whether you call it the elevation of law over common sense, or just excellent tactics, rookie New York State Senator Hiram Monserrate will neither lose his seat nor go to prison for the alleged slashing of his girlfriend, Karla Giraldo.
Queens Supreme Court Justice William Erlbaum’s bench verdict acquitted Monserrate of felony assault for the slashing, and convicted him only of the reckless misdemeanor assault for pulling her out of the building to take her to the hospital, as appeared on the building security tape.
Clearly, the local National Organization for Women won’t be happy about the verdict, New Yorkers who blame Monserrate for tying up the Senate with his flip-flopping shenanigans would have preferred his ouster, automatic upon a felony conviction. For those who believe that domestic violence is different than other crimes, and should not be subject to the same depth of scrutiny and proof, this acquittal is a nightmare. So was Erlbaum right?
From Newsday :
In his decision Erlbaum said there wasn’t enough evidence to convict the freshman senator of a felony. He said the only people who know what happened in Monserrate’s apartment that night are “Giraldo and the defendant himself.”Justice Erlbaum refused to do what so many expected, wanted him to do. He refused to accept the “common sense” claim that the only two parties present in the room where the slashing occurred, should be ignored and that argument supplant evidence. True, the argument wasn’t without support, based upon the testimony that Giraldo told the ER doc that Monserrate deliberately slashed her, but Giraldo similarly testified in court that it was an accident. Was the judge to ignore the live, examined and cross-examined testimony if favor of the claim that suited the more salacious, more emotional, maybe even more credible, view?
The judge, referring to the security video as evidence enough to convict Monserrate of misdemeanor assault, said Giraldo already was in a “weakened state” from an eye injury and Monserrate was reckless in “pulling her, pushing her as she’s fighting to stay” in the building.
“She is scared for her well-being,” Erlbaum said.
Justice Erlbaum’s decision was absolutely perfect. As a judge, performing his function without taint of the prejudice that makes us want to believe that Monserrate did the dirty deed and Giraldo has changed her story to cover his sorry butt, he followed the evidence and the law, and it could lead nowhere but to acquittal of the felony assault. No matter how much more visceral satisfaction might have been achieved by adopting the prosecution’s position, it lacked evidentiary support, and certainly fell miles shy of beyond a reasonable doubt. An honest, capable judge could do no less than acquit.
Mind you, this doesn’t make Hiram Monserrate a good guy, and certainly hasn’t cleared him of the stigma of being a girlfriend slasher. By no stretch did he prove himself innocent, and the video of his manhandling of Giraldo in the hallways afterward isn’t going to win him a seat on Dream Date. But trials aren’t about proving innocence, but proving guilt. Monserrate wasn’t on trial; the State was. And the State lost, and deserved to lose.
All this raises the question of whether the same outcome could have been achieved had Monserrate been judged by a jury. It’s almost certain that a jury would have convicted Monserrate of the felony assault, and that the decision by Joe Tacopina, Monserrate’s defense lawyer, to waive a jury was the difference between a conviction and acquittal.
When Joe Tac decided to go bench, it was a huge risk, The defendant only needs to persuade one of 12 that guilt isn’t proven to hang a jury, but when there is only one factfinder, there will be a verdict. And when so much attention is focused on a case, and pressure brought to bear on that one factfinder, the defendant so unsympathetic, the defense story so far-fetched and the injury so clear, the forces pushing for conviction are almost palpable.
But these are all influences of assumption and prejudice, the types of influences that juries seem incapable of ignoring when they are admonished to base its verdict on the evidence alone, and measure it against the standard of beyond a reasonable doubt. There aren’t many people who believe, in their hearts, that Monserrate didn’t slash Karla Giraldo that night, but trials aren’t about what’s going on in your heart, but in your head.
The acquittal on felony assault charges is both a triumph of law and a vindication of tactics. What this unfortunately suggests is that the beloved jury, those 12 Good Men and True, would have been incapable of ignoring their “common sense” and would have convicted Hiram Monserrate despite the failure of the evidence to prove guilt.
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Was the judge to ignore the live, examined and cross-examined testimony if favor of the claim that suited the more salacious, more emotional, maybe even more credible, view?
I’ll give a definite, “Sure, maybe.” Depends on what the testimony was, and how incredible it was. Not having heard it or read the transcript, I can safely and with complete confidence say, “I dunno.” If, after listening to it and looking at the other legitimate evidence, the judge reasonably said to himself, “Hey, I think he probably did it, but you know, it really just might have been an accident that left her face slashed and her irritated enough with his clumsiness and other bad behavior to fib to the ER doctor, so I gotta let him go on that,” he made the right call.
So: I dunno. That the lawyer made the right call in going for a bench trial rather than a jury trial is inarguable — the proof is in the verdict, after all.
You’ve fallen into the trap, amigo. The defense story and the prosecution story are not equivalents, making the verdict dependent on which one is more credible. The prosecution has the burden of proof beyond a reasonable doubt. The defense has no burden whatsoever.
Having followed the trial, to the extent one can without being present in the courtroom, I would go so far as to say that the prosecution’s story is more credible. But it isn’t a matter of what the judge thinks really happened, but whether the prosecution sustained its burden of proof.
Ironically, as your comment strongly suggests (because I know you to be far more attuned to the nuance of proof than most non-lawyers as well as a brilliant human being), the distinction between going with the more credible story, rather than with proof beyond a reasonable doubt, is still a pipe dream for the criminal justice system. People don’t get it. People may never get it. It’s contrary to everything we believe. It flies in the face of “common sense.”
Well, I often fall into traps; I’ve got a bad case of trapfaller’s ankle.
But perhaps I expressed myself poorly. What I was trying to get at isn’t equivalence of the proper roles of prosecution and defense (because I do believe that they’re assymetric) but the idea that, at some point, evidence creates a legitimate need for a credible story.
Al and Bob are known to hate each other; that’s provable. (We’ve got letters from one to the other, written in front of witnesses. The letters say, in relevant part, “I hate you.”) Bob is found handcuffed, with a bunch (let’s say 24, like the case of that thug cop who beat up the kid, when he defending himself against his ex-wife’s new husband by shooting him a dozen times in self-defense) of bullets in him, and Al standing over him with a gun, from which, the evidence shows, that the bullets came. Prosecution says that that all adds up to Al murdered Bob, even though there were no witnesses to the shooting (and, besides, witnesses can be remarkably unreliable).
At that point, I think — and maybe I’m wrong — that if the defense says, “Well, who knows? It’s possible — and as you know, Your Honor, that’s what Bob said happened — that Bob shot Al in self-defense, and in his last act in life, in an attempt to frame Bob, Al whipped a pair of handcuffs out of his back pocket and handcuffed himself, so you gotta let him go, Your Honor.”
I think that a: Bob gets convicted, and b: I’ve got the makings of a really lousy novel.
See how you’ve gone and spoiled your lousy novel by adding in evidence?
Your strained effort at analogy attempts to test the boundaries of beyond a reasonable doubt. This is relatively easy to do, since no one has ever been able to adequately define the burden, and everyone’s idea of what is “reasonable” differs. But the Monserrate case (bearing in mind that every case is fact specific, making use of analogy often difficult) doesn’t so much test the edge of the burden as provide a contrast between beyond a reasonable doubt and preponderance of the evidence, which is most easily defined as more likely than not.
Despite the lingo used by a judge in instructing a jury on burden of proof, most people make decisions, including the most important decisions of their lives, based on preponderance of the evidence. They go with the odds. To put it in mathematical terms, 51% will suffice. Maybe, the diligent trial juror will demand a higher burden, say 80% likelihood. But legally, this is indequate. If there is a 1% reasonable chance that the defendant did not commit the crime, then the jury should acquit.
And pigs sometimes fly, right?
Sorry, I have to go with NOW on this one.
The reality is that going with a bench trial was not a difficult decision at all. Cops almost always do it in those rare instances when they are criminal defendants. They do it because they have a lot of political clout, and judges as a group are very sensitive to, and more than a little afraid of, political clout.
Of course you are right that acquittal was a perfectly justifiable outcome. Conviction would have been perfectly justifiable, too. All the fact finder has to do is reject the exculpatory view of the evidence as being not credible, and you coast straight into a guilty verdict.
The problem with this verdict is that it would never have happened for a politically powerless defendant, although I will concede that as a practical matter the prosecutor would generally offer a misdemeanor plea if the victim wasn’t onboard, and I guess that wasn’t done here.
Perhaps, but be careful about being too cynical that it provides knee-jerk answers to all questions
And on the flipside of being too cynical, is being too naive, which perhaps I am, but I tend to think that when it actually gets down to a judge, defense lawyer and ADA, political clout isn’t much of a factor. In charging and plea bargaining decisions yes, but after that, I’m not so sure.
See how you’ve gone and spoiled your lousy novel by adding in evidence?
Yeah, I know; I hate when that happens.
Your strained effort at analogy attempts to test the boundaries of beyond a reasonable doubt.
Yeah, it does. And I’m using a hypo because I can set it up to my specs, rather than guessing what the judge actually saw and heard in the Monserrate case; easier for me to stack the deck while showing my cards that way, to waterboard an analogy. (Which is legal, by the way; analogies don’t have feelings or rights.)
What I think you’re doing, though — and I’ve been wrong before — is a bit of circular reasoning: since the judge found Monserrate not guilty beyond a reasonable doubt (which he did), you’re concluding that the judge actually had a reasonable doubt that Monserrate didn’t do it, rather than that, say, an unreasonable doubt. I’m going to Fair Witness a bit and assert that you don’t know that to be the case, either, although it certainly could be.
If your conclusion/assumption is right, though, yup: the judge did the right thing, even if (as I’m guessing, and it’s no more than a guess) Monserrate actually did it, and the judge was pretty sure (but not beyond a reasonable doubt or, as we civilians tend to call it “damn sure, based on evidence”) that he did it.
So maybe we don’t disagree all that much on this one. I dunno.
I do harbor a sneaking suspicion that some judge might, on some occasion when called up on to be a trier of fact, be tempted to respond stubbornly to public pressure to skip the whole listening to the evidence and evaluating it fairly and impartially thing and get right to the I’m not going to be pushed around thing and get overly skeptical.
But maybe I’m being overly cynical. Or, from another point of view, overly optimistic.
This surprises me, given that I state pretty clearly that it’s more likely he slashed her than it was an accident. So no, that’s not what I’m saying. I am saying that the judge actually applied the standard that the prosecution failed to prove it’s case beyond a reasonable doubt. I’m saying that the prosecution’s evidence was not sufficiently conclusive as to preclude the possibility of the defense’s position, even though it remains unlikely.
But your raise, you shifty devil, another issue, which is the need to be able to explain or justify the reasonableness of one’s doubt in voting against acquittal. If the case hasn’t been proven beyond a reasonable doubt, then what it that doubt and why is it reasonable? While this is absolutely the logical response, it’s one that should never be asked. The factfinder is not obliged to justify or make sense of his doubt, or be capable of enunciating it in some comprehensible fashion, but merely to have it. That’s the theory, anyway.
I doubt any meaningful generalizations can be made. Some judges are subject to pressure, others not. Some judges don’t need pressure, as they will convict anybody anywhere anytime. Others not. If anything, the pressure was on Justice Erlbaum to convict Monserrate, yet he refused to bow to it.
The aggregate indirect evidence together with the direct evidence was sufficient to a felony conviction. While recognizing that an equally strong strictly legal argument can be made saying it was not, I must insist that the argument in favor of conviction too has equal weight. Also, I question whether the D.A. was free in terms of time and energy to prosecute the case as vigorously as Tacopina was (and is) to defend his client. Writing in Newsday, Michael Frazier reported that NYPD officer Caitlin McNamara responded at the scene to a domestic violence call about the incident. Yet, we never have been told who made that call. Did Giraldo call 911 and did Monserrate then grab the phone from her? Or did one or more neighbors call 911? Somebody did, or Officer McNamara wouldn’t have been at Monserrate’s building. Dozens of little bits of evidence, that didn’t get factored in. I dare say, were it demonstrated that Giraldo perjured herself, that could have an impact. In the video, we clearly see she attempted to get help from a neighbor. Yet under oath when questioned by Kessler she denied that she rang the neighbor’s doorbell. What would it have taken for Erlbaum to declare her a hostile witness? Also in the video, we see Monserrate throw a PBA card down the trash chute and Giraldo look down the chute after it. In court, Giraldo stated Monserrate was jealous over the card. And the downstairs neighbor testified she heard hours of fighting leading up to a piercing scream. That is not the scenario for an accident. The neighbor did not hear a long calm and then a piercing scream; she heard hours of fighting and then a piercing scream. Given that, what is the reasonable hypothesis of innocence in the felony charge? The possibility that Giraldo gave perjurious testimony was not closely enough examined in court. Erlbaum absolutely should have let Kessler question her as a hostile witness. And no matter what arguments are made about the legal handling of the case overall, Monserrate unnecessarily risked the well-being of an injured person by dragging them rather than calling 911. For that failure of judgment alone, he is not fit to remain in the Senate.
The story you tell is one of a frustrated acquittal, precisely the point. You’ve given a list of problems, questions, holes, assumptions and omissions, yet nothing that proves guilt except that you feel that he should have been convicted. That’s why Tac waived a jury, because people on a jury would do exactly what you have done here.
In a jury trial, putting your client on to testify is a really great way to make the prosecution’s burden a civil one. Jurors just go with the story that suits them and proof beyond a reasonable doubt flies right out the window.
Would you have us believe that there has never been a bench trial in which a judge convicted the defendant for a felony assault charge on the basis of the same percentage mix of direct and indirect evidence as was present in this case?
The original post here says that during Monserrate’s trial, Monserrate was not on trial, the State was.
So, Monserrate was not on trial?
Is that supposed to be understood as a statement of fact?
No one would have you believe anything. This is America. You’re free to be as wrong as you like.
First, that isn’t a statement of fact, but a statement of our jurisprudence. The reason the burden of proof is on the prosecution, not the defendant, is because the state must prove its case. That is why the state is on trial. I realize this is a fairly nuanced concept for a nonlawyer, but give it some thought and you might get it.
You couldn’t be more fatuous in your arrogance if you tried. Yeah right away I don’t understand that the burden of proof is on the prosecution. Too much nuance for a non-lawyer to handle. Go jump in a lake.
Sure, it’s my fault you’re clueless. I didn’t make you ask stupid questions. Next time, instead of pushing the envelope by proving your cluelessness, try to learn a little about things you clearly don’t understand. Then you won’t have your name attached in perpetuity to such foolishness.
The grim reality is that only an exceptional jury, a really rare one, is going to take the “proof beyond a reasonable doubt” thing seriously.
I don’t mean that to be cynical, but reality is what it is.
It is also too much to ask people, in almost every case, to acquit someone they see all through a trial but never hear from, even though a lot of people get up on the witness stand and say terrible things about them.
Even if the defendant doesn’t do particularly well, and they usually don’t, there’s a lot to be said for the demystifying aspect of just letting the jury see that he’s not just some darkly mysterious figure of whom they are naturally suspicious, since he’s the accused. He might actually get the benefit of the doubt to some extent, if he’s likable at all. And since the jury is all primed not to like him, the bar is set pretty low. He can beat expectations fairly easily.
If “the state didn’t prove their case beyond a reasonable doubt” is all you have then you have to go with it, but generally you’re a lot better off showing a jury that the defendant is not such a bad guy and arguing that he didn’t do it, or that he did something but it wasn’t what the state says it was, or it wasn’t criminal. Something like that.