Commentary: Concerning Revelations in the Moses Trial

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crim2Defendant May Still Be Guilty – But We Need to Be Sure He Got a Fair Trial –

On Friday, we went to the court expecting to find out how many hundreds of years Bennie Moses would received after a Yolo County Jury convicted him of 62 counts for the molestation and rape of his daughter from the time she was 12 until she turned 21. 

Instead, we learned that a juror had possibly violated the very tenet of a fair and impartial trial.

As Public Defender Emily Fisher wrote in a motion asking for a new trial, “At least one juror spoke about the case and, in a sense, conducted her own investigation of a key issue in the jury trial in this case, outside of the deliberation room and without any of the other jurors present.”

This occurred when one of the jurors mentioned that “she had asked her husband whether he could ever be coerced to admitting that he slept with their daughter if he did not do so.  This juror further indicated that her husband told her there is no way he would ever admit to sleeping with his daughter if he did not do so, no matter what.”

Judge Mock will have to make the determination as to whether or not this constitutes an error that could have swayed the jury, or if it was a harmless error.

From the start, we were very concerned about the way in which the interrogation was conducted by West Sacramento Police.  Bennie Moses was held from 6 pm until 3 am, shortly before which he finally broke down and confessed. 

We know from research by the Innocence Project that in about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty. 

In the middle, he was misled by the police as to whether he was free to leave, as at one point he was told he could leave, only to be prevented from doing so.

Based on our viewing of the case, it appeared that his statement itself was evidence of his guilt.  The problem for Mr. Moses is that he did not merely give up and slump his shoulders, saying he did it.

Instead he said, “She just danced around and teased me in her nighties all night long.”  And he also talked about how she instigated the sex at times.

Kathryn Druliner, a criminal defense attorney who used to work for the Sacramento District Attorney’s office, noted, “It is NOT a question for a new trial about the defendant’s innocence or guilt or the strength of the evidence. The ONLY question is whether there was outside information. The reason for this is simple: No one could cross-examine that husband.”

The Defense Attorney in this case, Emily Fisher, made a similar point, “The fact that this juror went home to talk to her husband about whether he would ever admit to sleeping with their daughter if it wasn’t true is indicative that the juror had not been convinced that false confession could be obtained by police coercion, including in cases where someone is accused of having sex with their biological daughter.”

She added, “Furthermore, just because her husband would never admit to sleeping with his daughter if he hadn’t has no bearing on whether Mr. Moses would and did make such an admission even if it weren’t true.   This juror [performed her own investigation], by talking about the case outside of the deliberation room and without all jurors present.”

As we pointed out on Saturday, there is a precedent now with an appellate court throwing out a conviction where a juror did a homemade experiment.  This was despite the fact that the trial judge in that case, Judge Fall, ruled the error to be harmless.

We have noted in the past that Judge Mock has been rather lax in some crucial jury instructions.  This led, during the Niazi trial, to a juror making a comment to an individual in the court.  In another recent trial, Judge Mock did not give a standard jury instruction of not to talk to anyone about the case, until asked by a juror who had served jury duty before.

But perhaps most disturbing about this is additional information that leads us to start questioning the entire foundation of the conviction.  We are concerned that one of the alternate jurors expressed a concern that the daughter simply made this up and one of the jurors told me this weekend that they did not think that was an outrageous possibility.

Well, that sounds remarkably like reasonable doubt.

The question still comes down to whether the error is harmless.  I would argue that, based on the weight of the confession, it is not harmless.  Without the confession, there is no conviction here.

As Ms. Fisher wrote in the motion, “After the verdicts were read and recorded, defense counsel and one other member from defense counsel’s office spoke with approximately 6 members of the jury.  These 6 members of the jury indicated that Mr. Moses’ ‘confession’ was the crux of the evidence in determining Mr. Moses’ guilt and that absent the confession the other evidence would have been scrutinized more than it was.”

In our reading of the case, the confession, along with the DNA evidence, are crucial to understanding the case.  The confession may have been improper but the “nighties” part was enough to convince us that this was not simply a man who broke down and falsely confessed.

The DNA also bolsters the claim, as there was never any credible way for the defense to explain that away.

However, from our viewpoint, the victim’s testimony is problematic in that it was filled with inconsistencies and the failure of the victim to pinpoint specific incidents.  Deputy DA Michelle Serafin explained that away, suggesting that because the rapes were part of daily life of the victim, she was unable to remember details other than perhaps the first or most recent.

While that sounds plausible, it seems just as reasonable that she would have been able to at least recall a few in detail that stand out in her mind over the years.  After all, I may not remember every meal I have over a ten-year period, but I can certainly recall a few pleasant and unpleasant ones along the way.

As we have said many times, the way that the confession was achieved never sat well with us.  There is simply too much research on false confessions to think otherwise. 

The fact is, contrary to the view of the juror’s husband, people do confess to crimes that they have not committed.  It happens with alarming frequency.  And unless you can place yourself in that room, it is hard to know what you would do.

Given what we have seen and heard in the last few days, given the gravity of the charges and the life sentence that would be imposed, it is incumbent upon us to make sure the jury got it right.  If that means we have to do it again, then we do exactly that.  I don’t think we can know what a jury would have done without that intervention.  It is best to err on the side of caution.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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8 thoughts on “Commentary: Concerning Revelations in the Moses Trial”

  1. E Roberts Musser

    dmg: “While that sounds plausible, it seems just as reasonable that she would have been able to at least recall a few in detail that stand out in her mind over the years. After all, I may not remember every meal I have over a ten-year period, but I can certainly recall a few pleasant and unpleasant ones along the way.”

    It is common for victims to completely block out their abuse from their minds – it is how some cope living w what happened to them.

    As I said before, trials are rarely perfect, prone to human error. The error in this case was committed by a juror. It will be interesting to see if the judge holds the error as being harmless or not. The DNA evidence is definitely going to be a “telling” factor in the consideration I should think…

  2. JustSaying

    [quote]“The problem for Mr. Moses is that he did not merely give up and slump his shoulders, saying he did it. Instead he said, ‘She just danced around and teased me in her nighties all night long.’ And he also talked about how she instigated the sex at times.” [/quote]Is this the totality of his “confession”? I agree that this sounds like he’s confessing, but didn’t the interrogators get anything more specific? He didn’t get around to saying, “I did it,” is a less vague manner?

  3. Rifkin

    In case any Vanguard readers are interested in the subject, Judge David Rosenberg has written an op-ed ([url]http://www.davisenterprise.com/opinion/new-yolo-courthouse-will-benefit-residents/[/url]) in The Davis Enterprise attacking my column of April 13 ([url]http://www.davisenterprise.com/opinion/courtroom-construction-shouldnt-be-a-priority/[/url]), in which I questioned the wisdom of California spending $5 billion on 41 courthouse projects at this time, when our state is still $15 billion in the red.

    Shocked at his op-ed, which I found to be poorly written and full of deceptive claims and some downright untruths, I penned a point-by-point response to the judge, which you can read here ([url]http://lexicondaily.blogspot.com/2011/04/judge-rosenberg-claims-my-column-was.html[/url]).

  4. David M. Greenwald

    Elaine: “As I said before, trials are rarely perfect, prone to human error.” I think that’s a cop out. When you are putting someone in prison for the rest of their life, you had better be darn sure they did what you said they did – don’t you think?

  5. David M. Greenwald

    “Is this the totality of his “confession”? I agree that this sounds like he’s confessing, but didn’t the interrogators get anything more specific? He didn’t get around to saying, “I did it,” is a less vague manner?”

    It did not. It never got him to admit to raping her, only having sex with her and only when she was over 18. I tried to get a transcript of the full interrogation, but the public defenders office was not interested in turning it over.

  6. E Roberts Musser

    dmg: “Elaine: “As I said before, trials are rarely perfect, prone to human error.” I think that’s a cop out. When you are putting someone in prison for the rest of their life, you had better be darn sure they did what you said they did – don’t you think?”

    Hmmmmmmm, guess you are not understanding my point. Let me try again. Trials are never, ever perfect bc people are involved. In this case it appears that the trial was fairly well run by all sides and the judge, but a juror made a mistake. That is the nature of trials. They are messy, almost always. If you seek perfection, you will never get it at trial, it just doesn’t happen. That is why the standard is guilt “beyond a reasonable doubt” rather than a super standard of “beyond any doubt”.

    The reason I pointed this out was bc in this article you seem to be critical of the victim not having a perfect recollection of what happened. Victims of crime often do not have good recollections of what happened, not bc the crime was not perpetrated on them, but bc it is natural for the mind to block out horrible events as a protective mechanism of coping w trauma. But so what? The victim’s failure to remember details of the crime does not necessarily make the defendant any less guilty. In this case, it sounds like the court system got it right, but a juror mistake may cause a mistrial. Frustrating, but the imperfections of the justice system… What do you want to do, take the juror out in public and give her 20 lashes w a wet noodle?

  7. David M. Greenwald

    I think you also miss my point. The question before the judge is whether this is a harmless error. Part of what i am doing is analyzing whether there is a possibility that a jury would have reached a different verdict without the jurors misconduct.

    There is a four point case for guilt – each though has flaws. My original inclination is that the totality of the evidence pointed toward guilt. But i decided to reassess based on the alternates possibility that she might be lying. On the other hand if lying why not just make up stories? You use the perfect argument a lot but sometimes i think you are guilty of expecting everything to be black and white when in fact there are huge gray areas that should be explored. I still think she should have been able to remember something from nine years of attacks. Your supposition is fine but you are burden shifting with it.

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