On June 17 the Fourteenth Court of Appeals, in Houston, overturned the convictions of Kelly and Jamie Pittman. Kelly, the judges said, deserved a new trial because he hadn’t been allowed to present a defense and because Judge Skeen had “adopted ad hoc evidentiary rules that operated to assist the state in proving its case, while impeding appellant’s ability to defend himself.” (Jamie Pittman’s conviction was overturned on different grounds; Mayo’s was upheld, likely because her appellate lawyer cited none of the evidentiary issues that Kelly’s lawyers had raised.)Hall reports that Skeen made essentially the same types of rulings in this case for which he was recently benchslapped by the appellate court, continuing to exclude obviously probative evidence:
The ruling was no surprise to local defense lawyers. Skeen is a legend in Smith County. He was the law-and-order DA there for 21 years, then was appointed judge in 2003; he’s been reelected twice. He also has a reputation for helping the state and hindering the defense. “He never stopped being the DA,” Kelly’s attorney, Thad Davidson, told me the day after the appellate decision was announced. “He just put on a robe.”
Skeen struck another huge blow to the defense when he allowed Margie—the foster mother of three of the children, the interviewer of four of them, the person whose passion had driven the cases for more than five years—to invoke her right to refuse to testify on the grounds that she might incriminate herself, even though she had already testified in the first two trials. Cassel was able to question her but only after the jury had left the courtroom. The lawyer asked Margie more than 130 questions in thirty minutes. He asked her about the California decertification, about her habit of suggesting answers to the children, about her former career as an acting coach (“And you know how to teach [children] to remember lines?”). To each question, Margie answered, “I decline to answer based on my constitutional rights.” She slumped in her chair, staring down or into the middle distance, occasionally rolling her eyes and sighing loudly.That's straight-up sleazy, biased judging. The courtroom should be a place to doggedly seek the truth and Skeen's doing his best to distort and skew it from the bench.
Skeen had forced Cassel to jettison much of the case he had planned to put before the jury. When Margie was finished, the defense rested.
Hall described how, even though much of the defense was excluded by the judge, major logical and factual holes were still poked in the case by the defense. His story closes:
After four decisive guilty verdicts, it’s likely that the next trial will have the same result, largely because it will be overseen by the same judge. “Due process demands that the defense gets to put on a case,” longtime Tyler defense attorney Bobby Mims told me. “Cassel was prevented by Skeen from doing that. Don’t get me wrong. Jack Skeen is a great guy. I love him. He’s one of my best friends. But he’s been a terrible judge on these cases.”I'd like to believe, as Mims said, that the jury would have concluded differently if the judge had allowed them to hear all the evidence, but you have to wonder. Attorney Paul Kennedy recently wrote about how "going for the gut" when addressing jurors often serves attorneys better than facts or logic. He mentions the work of "Dr. Jonathan Haidt, a psychologist at the University of Virginia, [who] proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion," which he argues stem from evolutionary reactions based on diet more than a well-thought out belief system. Kennedy considers the stunning (if somewhat humorous) implications of the hypothesis: "What if the development of that moral code had more to do with the evolution of our digestive tract?" (Mark Bennett followed up with a post fleshing out the implications of this line of thought.)
Mims went into his own soliloquy on the jury system. “Cassel proved that what these children say happened could not have happened. They were never in that swingers club. The problem is that juries don’t always make decisions based on logic. In this type of case they make them on their hearts or on fear. That’s a hazard of the jury system. Still, they should have all the evidence. If they then decide the defendant’s guilty, that’s fine.”
He paused. “But in these cases I don’t think they would have. I believe these people are innocent.”
If one's "moral judgment" is really an emotionally based decision rooted in "disgust," then accusations of child molestation are situations where it's easy for prosecutors to invoke that reaction in jurors. So if it's really the case that emotion trumps facts among jurors - especially when the most probative facts are excluded, as in Judge Skeen's court - it's not surprising, if a little depressing, that emotion ruled the day.