While discussing the Robert Durst trial on Law & Crime’s Morning1The following commentary is offered pursuant to Canon 4(B) of the Code of Judicial Conduct: “A Judge may (1) speak, write, lecture, teach and participate in extrajudicial activities concerning the law, the legal system, the administration of justice and non-legal subjects subject to the requirements of this Code.” Docket with Jesse Webber, the “Rule of Universal Reasoning” came on full display. Find out all about it, including a great example from Timothy McVeigh’s trial.
The Rule of Universal Reasoning means that the test used to determine whether one piece of evidence2The type of evidence could be a witness statement, a fingerprint, or the credibility of a witness. is believeable should be equally applied to all similar evidence. I’ve heard practitioners refer to as the “same line of thinking,” “logical consistency,” “applying the same logic,” or that oft-cited bedrock case “The Goose vs. The Gander.” In response to it’s deployment, opposing counsel can be heard to warn jurors against “compartmentalizing” evidence, or will encourage them to “look at all of the evidence together, not just one piece in isolation.” Here’s some examples.
Robert Durst is on trial in California, accused of murdering his friend Susan Berman. The motive for Berman’s killing proffered by the Prosecution is that Berman knew that Durst killed his then-wife, Kathy Durst 1982. Durst denied killing her back then, and has always maintained his innocence. While examing Durst during trial this week, Houston laywer Dick DeGuerin asked him about his actions during the police investigation of his wife’s case using questions designed to show that his actions were more consistent with how an innocent man would act after the disappearance and subsequent murder investigation: did you cooperate with police? Did you allow them into your home to search for evidence? Did you speak freely with them and answer their questions? Durst answered affirmatively to all of them. The lesson for jurors: cooperative, honest and transparent behavior identifies an innocent man.
A summary of his testimony from this LA Times Article provides good background for how he acted after Susan Berman’s murder: Durst discovers Berman’s body, says that he tried to call 911 from the house but the phone was dead, went to a payphone on Sunset Blvd. to call the police but decided against it because he feared his voice would give away his identity. Instead, he decided3“There seems to be a sort of instinctive dread, from which the innocent are not always exempt, of being found alone, especially in a house, with the body of a person just dead by violence, or even presenting the appearances of such a death. Guilty persons constantly evince this feeling, by either flying precipitately from the spot, or, where this is impossible, by hiding or removing the body itself.” See Alexander Burrill, A Treatise on the Nature, Principles and Rules of Circumstantial Evidence (1865), Page 373. to write what has become known as the “Cadaver Note” and send it to the Beverly Hills Police. The block printed note simply says “1527 BENEDICT CANYON“4This is the same Benedict Canyon in which Charles “Tex” Watson and his accomplices dumped the clothes and knives they used to kill Sharon Tate, Jay Sebring, Stephen Parent, Abigail Folger and Voytek Frykowski. Take a listen to or a read of “Death Is Charlie’s Trip,” Episode 3 of Charlie Manson’s Chief Lieutenant. followed by the word “CADAVER;” the stamped envelope containing it was addressed to the “BEVERLEY HILLS POLICE.”5“Beverley” is misspelled this way in the original note. He has been asked repeatedly about writing the letter, and for years, steadfastly denied writing it. All that changed in 2019. He now admits to 1) writing it and 2) lying about having not done so.
Here’s how the rule of universal reasoning applies to Durst: If we are to believe he is innocent because he was cooperative, honest and transparent in 1982, then we must believe he is not innocent when he was not cooperative, honest or transparent in 2021.
The Rule came up during Agent Steve Burmeister’s testimony in Timothy McVeigh’s trial as well. The defense’s theory on cross examination was that the FBI lab was contaminated because lab tables weren’t properly cleaned, nor were the lab floors. Same with employees coming in and out of the lab. They weren’t cleaned or decontaminated, either. If the items weren’t cleaned between tests, and the unclean employees had been around explosives before they got into the lab, or walked around freely while in it, the defense theory says positive findings of explosives on key pieces of evidence like McVeigh’s clothes and earplugs are unreliable. The lesson for jurors: Everything tested positive for explosive residue because the lab is contaminated.
During redirect, the government pointed out that there were numerous items tested in addition to McVeigh’s earplugs and clothes: other blankets, carpets, some of McVeigh’s other clothes, and items recovered from accomplice Terry Nichols’s house – an environment which indisputably contained explosives. None of these other items had explosive residue. The lesson for jurors now is everything did not came back positive for explosive residue so the lab was not contaminated. Prosecutor Beth Wilkinson drove the point home while cross examining defense expert Frederic Whitehurst:
And the general common sense idea is that when the evidence is tested and there were no residues found, that is a pretty good indication that there is no contamination as to that evidence?
The fact that hundreds of tests that Mr. Burmeister did, and that there were very few findings of high-explosives residue makes it less likely that there is systemic contamination?
Two examples of The Rule for the practitioner to ponder. It’s certainly not original, and other practitioner’s may have different names for it. Philosophers call it Logical Argument. No matter what you call it or how you use it, The Rule’s value in a juror’s calcuation of fact or fiction is significant.