Why the Post Trial Macinations
In the
previous article we looked at how double jeopardy attaches to this case in
various ways. In this article we look at
what was behind the post trial machination by the prosecutor and judge—and it
wasn’t because they wanted to retry Cameron Brown on the higher charge. The post trial machinations were necessary to
retry him on any charge.
MOTIVATION
BEHIND POST TRIAL MACHINATIONS
When you
break it down to the core of the matter, the controversy over the outcome of
the second trial comes from the fact that there was no explicit verdict to
acquit. This is what prompted Judge
Pastor to declare he was confused. (Trial Transcript, Page 13541, Line 8)
Despite the judge’s confusion, it is a fundamental tenet that should a jury
unanimously decline to convict—even when the jury fails to formally return a
verdict of acquittal—the defendant is nevertheless acquitted because the
standard of “guilt beyond a reasonable doubt” has not been met. This is recognized under case law in California
In spite of
that, Judge Pastor and Prosecutor Hum insist that there was no verdict. However, if there truly was no verdict, what
motivated the post trial machinations of jury declarations and the judge’s
“King’s X” rationale? The act of
collecting declarations attests to the fact that there must have been a
verdict—one the prosecutor wished to foreclose against. And the judge’s King’s X rationale, his
omission of some of the facts before him, attests to the fact that the omitted
facts reveal that there must have been a verdict.
Even though
the jury did not formally return a “not guilty” verdict, they unanimously
declined to vote “guilty” after voting on the charge of first degree
murder. There is no functional
difference between unanimously voting “not guilty” and unanimously not voting
“guilty.” Therefore, the jury implicitly
acquitted Cameron Brown of the charged crime of First Degree Murder. Retrying him on that charge is a violation of
the double jeopardy clause against his rights.
The prosecutor
and judge did not go through those post trial machinations simply because they
wanted to retry Cameron Brown for a higher charge. The indictment of Cameron Brown is very
specific. It does not permit an
acquittal of the charged crime of first degree murder, and allow prosecution on
the lower included offenses. Therefore
the post trial machinations were necessary for the prosecutor to get another
opportunity to try to convict Cameron Brown on any charge.
This issue is
a question of law—and this case reveals a contradiction between the way the law
is written and how it’s practiced in California
A QUESTION OF LAW
In his
opening statements prosecutor Craig Hum declared, “This case is about the
murder of a little four-year-old girl, who was killed by her father…The
defendant murdered Lauren by taking her on a hike to Inspiration Point in
Rancho Palos Verdes and throwing her from a 120-foot cliff into the Pacific
Ocean below.” (Trial Transcript, Page 2450, Lines 24-26; Page 2451, Lines 1-4)
Yet, when you break it down to the very essence of the evidence, the
prosecution presented only two or three witnesses that dealt with actual
evidence of whether or not Cameron Brown picked up his daughter and threw her
off a cliff.
About fifty
witnesses testified for the prosecution, (Trial Transcript, Page 7329, Line 14)
yet very little was presented as to what actually occurred on November 8,
2000. The bulk of the testimony
consisted predominately of extreme character assassination and the incessant
demonization of Cameron Brown. The
primary function of this testimony was emotional appeal. In this way prosecutor Hum endeavored to
paint a very unfavorable picture of Cameron Brown to make the jury dislike him,
so he could get them to convict him of something. (Trial Transcript, Page 7330,
Lines13-27) This was the main focus of the prosecution’s case: character
assassination with a very scant amount of testimony about their primary theory
that Cameron Brown threw his daughter off a cliff.
However,
interwoven into their case was a secondary theory that alleged Cameron Brown
intentionally took his daughter to the most dangerous area on top of
Inspiration Point and allowed her to run around up there; and there was an
implication that he hoped she would fall.
The vast majority of what was presented by the prosecution was in
support of this secondary theory.
The
prosecution’s two theories are NOT based on rational inferences from ambiguous
evidence that could result in multiple theories. Their primary, overt theory is very clear;
the only way Lauren could have sustained her injuries is if Cameron Brown threw
her off the cliff, to the exclusion of any other possibility. (Trail
Transcript, Page 9456, Lines 12-14, 17, 18) Their secondary theory is that
Cameron Brown allowed Lauren to run around on the most dangerous area on top of
Inspiration Point, hoping she would fall.
Their primary and secondary theories are supported by contradictory and
mutually exclusive underlying facts, making the two theories inconsistent at their
core. As a result, each theory makes the
other one impossible. Thus, Cameron
Brown was tried for two contradictory and mutually exclusive theories about a
single event. Another way one can look
at it is that he was tried twice for the same thing, albeit simultaneously, as
he was tried for two different, distinct and conflicting theories in one trial;
and he was indictment for only one of them.
THE FUNCTION OF THE PROSECUTION’S TWO
THEORIES
The prosecution’s
primary theory was the basis to charge Cameron Brown and get an
indictment. It is the theory the
prosecution relied on to get them into court.
However, once in court, the main emphasis of the prosecution’s case was
on their secondary theory, as they pursued an implied malice theory for second degree
murder.
Their primary theory
became a shadow argument. The
prosecution merely gave it lip service, bringing in just a couple of witnesses
to support it.
The bulk of the
prosecution’s case was in support of their secondary theory, making it the prosecution’s
real case. This must, at the very least,
constitute a Due Process violation against Cameron Brown.
KEY EVIDENCE
PRECLUDES PROSECUTION’S SECONDARY THEORY
For nearly two years Sheriff’s
investigators had endeavored to come up with evidence to charge Cameron Brown
with murder, to no avail. After nearly two
years of expert shopping, Sheriff’s investigators had come up empty. That’s when Prosecutor Hum intervened and brought
in expert witness Dr. Wilson C. Hayes. (Trial
Transcript, Page 6486, Lines 8-9)
Dr. Hayes concluded that
the crime of first degree murder had been committed
to the exclusion of all other possibilities. (Trial Transcript, Page 6982,
Line 7 to Page 6983, Line 1) He said that by looking at the relationships
between Lauren’s injuries, the topography of Inspiration Point, and the laws of
physics, (Trial Transcript, Page 6957, Lines 11-16; Page 6959, Lines 13-18) he came
to the “inescapable conclusion” that the only possible way Lauren could have
sustained her injuries is if she was “launched forcibly from the top of that
cliff.” (Trial Transcript, Page 6924, Lines 17-26) He didn’t say it was just one possibility. He said that it was a certainty—that it was the only possible way the fall
could have occurred. (Trail
Transcript Page 9456, Lines 12-14, 17, 18)
Dr. Hayes documented his
conclusions in a report he created on September 12, 2003 for the
prosecution. This report is the single
piece of evidence that got this case into court. Without it there is nothing to indicate that a
crime, instead of an accident, was committed. (The ME was only willing to say
that Lauren died of blunt force trauma. He was unwilling to call it a homicide
based on Lauren’s injuries. Only by
deferring to others did he eventually call it a homicide; Autopsy Report, pages
7-8. This will be examined in detail in
a later post.)
Once in court, prosecutor Hum put very little weight on Dr. Hayes’
conclusions. Instead he concentrated on
his secondary theory that alleges Cameron Brown allowed his daughter to run
around on an area that slopes down toward the ocean at the edge of the
cliff. There is no credible evidence to
put them there. Moreover, evidence for
their primary theory excludes the possibility that she could have fallen to her
death in that matter. (Trial Transcript, Page 6979, Line 25 to Page 6981, Line
1; Page 6982, Lines 21-23)
Nevertheless, once in court prosecutor Hum concentrated on his
secondary theory, going for implied malice second degree murder. He was confident the jury would be instructed
on implied malice for second degree murder, due to a requirement for jury
instructions on lesser related offenses, and he took advantage of it, despite
the fact that it contradicts the evidence used to charge and indict Cameron
Brown. In this way he prosecuted Cameron Brown for a theory that contradicts
the evidence that got him into court.
CA SUPREME COURT’S RULINGS ON
LESSER INCLUDED / LESSER RELATED
OFFENSES
Under California CA
Despite these rulings,
the case against Cameron Brown makes it manifestly evident that this is not how
the law is practiced in California
Even the jurors, it
appears, intuitively knew what the attorneys did not know. The first legal question they asked was:
"Do you have to believe beyond a reasonable doubt that he threw her in
order to find the defendant guilty of murder in the first or second
degree?" (Trial Transcript, Page 10803, Lines 1-6)
“I think that the very
simple answer to that question is no, and that's the only answer that need be
given,” Mr. Hum said. “Certainly, I
think all counsel would agree that on implied malice theory for second degree
murder, there is certainly no requirement to show that the defendant threw
Lauren off the cliff.” (Trial Transcript, Page 10803, Lines 11-17)
An implied malice theory
for second degree murder is in contradiction to the prosecutor’s indictment,
and therefore, in contraction to how the CA Supreme Court consistently rules on
the matter, yet the prosecutor boldly and confidently advanced an implied
malice theory for second degree murder every time the issue came up.
PROSECUTION’S
“EVIDENCE” FOR SECONDARY THEORY DOES NOT MEET STANDARDS FOR INDICTMENT
The prosecution’s secondary theory is that Cameron Brown allowed his
daughter to run around on an area that slopes down toward the ocean at the edge
of the cliff. There is no credible
evidence to put them there. Moreover,
evidence for their primary theory—the
evidence used to get an indictment and get into court—excludes the possibility that she could have fallen to her
death if she had fallen from the sloped area.
(Trial Transcript, Page 6979, Line 25 to Page 6981, Line 1; Page 6982,
Lines 21-23)
The “evidence” used by the
prosecution to put them on that slope consists of impressions in the dirt which
the crime lab analyst determined were NOT footprints, and statements by several
officers, which are all problematic. The
“evidence” used to put them on that slope does not meet the standards to charge
and indict Cameron Brown. The prosecutor
made up for lack of credible evidence by constant repetition of the allegation that
they were on the slope, thereby causing the jurors to believe it was an
established fact.
A STRATEGY TO
EMOTIONALLY MANIPULATE THE JURY
The prosecution’s approach to convince the jury that
an implied malice second degree murder offense had taken place was as follows:
he appealed to the juror’s emotions throughout the trial; (Trial Transcript,
Page 7330, Lines13-27) at the end shocked the jurors’ sensibilities and
immediately sent them into the deliberations room.
Throughout the trial the prosecution’s case was
centered on character assassination and the demonization of Cameron Brown,
coupled with the constant repetition that Lauren fell from the sloped area at
the edge of the cliff. At the end the
jury was taken to the site and shown the sloped area. Despite the fact that there is no credible
evidence that Cameron and Lauren were on that slope, it was presented as an
established fact. The consequence was to
shock the jurors’ sensibilities.
Immediately upon shocking them, the jurors were sent to deliberate.
The effect of shocking the jury is revealed by events that happened near
the end of deliberations. On Friday,
September 25 the jury indicated they were deadlocked. Instead of polling them, the Court instructed
them to return on Tuesday, September 29 and resume deliberations. On Tuesday
morning they submitted a question. The
foreman said, “Most felt until they had an answer to the question they couldn't
continue deliberations.” (Trial
Transcript, Page 12319, Line 28 to Page 12320, Line 4)
The trial transcript does not record the question. Instead the Court
asked counsel to review it in written form. (Trial Transcript, Page 12301, Lines
18-28) Yet, it is clear from the discussion that followed the question had to
do with the site visit and the feelings the site visit generated. The crux of the question was: are the
feelings generated by the site visit evidence. (Trial Transcript, Page 12301 to
Page 12308; Page 12335 to Page 12338) The ensuing discussion about the question
covered the following points. These excerpts
capture the gist of the discussion regarding the jurors’ question:
“I
think the answer is yes,” the prosecutor responded. “I mean the whole purpose
of going out to the location was to have them see and understand the area and
the dangerousness of the location. And certainly, the dangerousness of the
location and their feelings about that is relevant to both the first and the
second; and particularly with regard to an implied malice second.”
Defense
counsel responded, “What is not evidence, as stated in the jury instruction, is
emotions and any emotional feeling or emotional reaction is not to be used.”
“I would disagree with that because I think
that especially when we are talking about - - again, if we are talking about an
implied malice second degree murder, their feelings about the location are
important. Their feelings with regard to the dangerousness, their feelings with
regard to whether or not the defendant would recognize the danger, all of that
is appropriate evidence for them to consider when they are making a
determination as to whether or not there was implied malice,” Mr. Hum said.
“Their feelings with regard to the location, I think, is appropriate evidence.
“The danger to which Mr.
Harris refers is the gut, visceral, emotional response,” the Court said.
And
the prosecutor responded, “I guess the problem I have is what feelings about
the location that we visited would not be appropriate for them to consider?”
“Well,
I think that is -- the jury instruction, I think, is very clear that you are
not to bring in emotion in terms of making decision. I think the problem I have
with Mr. Hum’s argument is that he is attaching feelings, the phrase
"feelings," to … an emotional reaction. That is a feeling that should
not be taken into consideration,” defense counsel responded.
“Their
emotional response, their visceral response to being out there, is certainly
something that they can consider in evaluating the behavior of the defendant,”
the prosecutor said.
[Trial
transcript, page 12302, line 1 – page 12308, line 12]
After that
occurred, the jury deliberated for four more days for an average of 2.5 hours per
day. Prior to that, they had been
deliberating for an average of 7 hours per day. This suggests that after the Court would not
accept that they were deadlocked there was a shift in the jury’s frame of
mind. More importantly, this dialogue
reveals the weight the prosecutor put on the jurors’ visceral, emotional
response to the site visit, and his emphasis on an implied malice second degree
murder.
What is
revealed is a strategy that entailed emotionally manipulating the jury
throughout the trial, shocking their sensibilities at the end, and immediately
sending them into the deliberations room.
This is what was necessary for the prosecution to endeavor to convict on
an implied malice second degree murder, since they did not have any real
evidence for their secondary theory. After being subjected to such a strategy,
it’s no wonder emotion drove the jury’s decisions, not credible evidence
presented at trial. Facts were
secondary to feelings in this case.
This strategy could not withstand a final outcome of
not guilty for first degree murder and a hung jury over the lesser uncharged
offenses. Since that was the outcome reported
in the court proceedings and recorded in the trial transcript, the post trial
machinations were required to give the prosecution another opportunity to try
to convict the defendant.
