Our Justice system has many moving parts. There are many technical and ethical standards, and they require strict adherence. The last line of adherence is the jury. They are given the power to right the wrongs made along the way. But what if they, too, don’t adhere to the standards set out for them…
Set aside for the moment what wonderful people Robert Pape and Cristin Smith are. How Robert is a bright, shining light of a human being. How he brightens up anyone who comes in contact with him. How everyone who knows him personally knows exactly what I am talking about. How Cristin is a dedicated family man, a loving father, a son, a husband, who served the public and served his country. How they are utterly incapable of that for which they were recently convicted. Set that all aside for a moment and let’s just look at one simple aspect of the jury’s sworn duty – following the jury instructions.
The jury was given explicit instructions such that if there were two possible reasonable explanations for a given bit of circumstantial evidence, and one pointed to guilt while the other pointed to innocence, the jury MUST choose the reason that pointed to innocence. It was not to be a discretionary call.
So much of this case was circumstantial. There were arbitrary interpretations of cell tower connections, footprints with no matching shoes, cell phones turned off, timing factors, witness testimony, even a business card with DNA on it found two football fields away from the crime scene. Let’s go over these items and see if there are two possible reasonable explanations for each circumstance.
Robert was blissfully happy with Sara, the girl he was dating at the time – the girl he eventually married. The girl who testified that he was the ‘best person she ever knew’ and was ‘never violent’. He had no reason to ‘go hiking’ with his ex-girlfriend, the girl who clearly still had feelings for him, the girl who apparently had an array of pictures of Robert up in her room.
Becky was brutally murdered. Would he have motive to do something so horrible? He, with no criminal past and nothing since? One explanation could be that Robert was jealous of her. This would point to guilt. Another explanation would be that he never went up to her house, as he told the police. This would point to innocence. The jury instructions would apply.
The prosecution postulated that the sequence in which cell towers were ‘ping’ed demonstrates that the boys were headed up highway 74 towards Pinyon Pines. By their own admission, based on a study performed roughly 10 years after the fact, the prosecution’s coverage maps showed that the towers in question only slightly covered Hwy 74 going up the hill. The vast majority of the tower’s coverage is on the valley floor. It is entirely plausible that a short
drive around the valley, where the defendants claimed to have been, would render the same sequence of tower connections. Drive east on Fred Waring from Monterey, turn left on Cook, then left again on Country Club, and chances are you will make the same connections, with exactly the same time intervals.
The strained assertion that these connections indicate driving up the hill is, at best, just one possible explanation. One that points to guilt. A simple drive on the valley floor is also a reasonable explanation. One that points to innocence. Jury instructions apply
Footprints in the sand
Much was made about footprints found in the sand near the crime scene. It was touted that there were prints made by VANS and DVS brand shoes. While no DVS shoes were ever found at the defendant’s houses, Robert Pape did own a pair of Vans shoes. When listening to this testimony, one would think that this fact was presented in such a way as to imply that the shoes connected Robert to the crime. The prosecution conveniently (deceptively?) did not make it known that the soles of the shoes found at Robert Pape’s house DID NOT MATCH, even remotely, the prints found in the sand. The sole design pattern was distinctly different than the pattern found in the sand.
This lack of forthrightness by the prosecutor left it up to the jury to discover this fact on their own – it’s still not clear if they were ever fully aware of this discrepancy. The only value of the five footprints, then, was to connect a piece of debris found 200-800 yards away from the crime scene. The ownership of the shoes in question is completely indeterminate.
Way out in the desert, there was a business card found. The card was for a
‘Pro-Life Ministries’ foundation. The exact distance from the crime scene is unknown, but was estimated by one investigator at 800 yards, and by another investigator at closer to 200 yards. I will use 200 yards for the purpose of this discussion. Over that distance, only five footprints were documented: (three DVS and two Vans IIRC). It was stated, during testimony, that there were more relevant footprints along the path, but none were documented; despite investigators having digital cameras and even video camcorders available for easy documentation.
The prosecutors speculated about a scenario of three people walking 200 yards out into the vast desert, then a murder, then rolling the body closer to the house in a convenient wheelbarrow. In such a scenario, given that much walking by multiple people to and from the ‘scene of a struggle’ near where the card was found, there should have been well over a thousand footprints! (3 x 200+2 x 200, assuming a 3 ft stride) Again, only 5 footprints were found. And, again, the prints did not match any known shoes (see above). Also, there was no weather data gathered, and there was likely no rain for the preceding several months. The footprints could have been there for weeks.
Did the shoes connect the business card to the crime? That there was only five, and that they weren’t consistent, nor matching anything the defendants owned would be an explanation that points to innocence. I am not sure what the explanation is that points to guilt.
DNA found on the card was determined, by only one out of four labs, to match Cristin Smith. The DNA on the card was shown to have degraded, most likely as a result of sitting in the sun for some extended period of time (days, weeks, months, not just over one night). It was also demonstrated that, due to a facet of the crumpled card facing toward the sun, chemicals applied to the card reacted differently to that facet, consistent with prolonged sun exposure.
It is believed that the most likely origin of the card was the home of Robert Pape’s mother. All three people, Becky, Robert and Cristin, had occasion to be at that home while Becky and Robert were still dating, at least nine months prior. Often they were all there at the same time.
One explanation for the card’s location is that Cristin brought the card with him, for whatever reason, that fateful night. That doesn’t explain the degradation or the sun exposure, but the prosecutor believes it points to guilt. Another explanation, possibly more reasonable, is that Becky picked it up Robert’s mother’s house, and it somehow came from being in Becky’s possession over time, to being out in the desert behind her house. This explanation points to innocence. Jury instructions apply.
It should be noted that without the business card, there is no trace evidence whatsoever, however far-fetched it may be, that the defendants were up there that night.
The defendants were unquestionably on the valley floor at 7:00 when they connected to a tower nears Robert Pape’s house. Other connections are subject to speculation as to which direction they were headed, but the last one was at 7:13. The phones did not connect again until 10:23 that night when they were near Date Palm and I-10
Various facts indicate that the fire started sometime between 9:45 and 9:50pm, a maximum of 38 minutes before the cell connection. The drive time from the crime scene to the cell tower coverage area varies depending on how aggressively you drive. Google maps indicates approximately 48-50 minutes. During testimony, a complete drive study was shown on video from a camera inside a car driven by a law enforcement officer. It made the trip in a stunning 32 minutes. The audio clearly indicated very aggressive acceleration and the driver clearly sped past every car encountered along the way. This kind of driving would likely get you pulled over and would not be expected by someone trying to be inconspicuous.
(The defendants, approximately 18 years old at the time, stated that their phones were turned off at the time, as they often were. To wit: Cristin’s phone records showed similar dark times on most all of the preceding nights in the available records.)
Of special note: Robert Pape stated that they stopped at an AM/PM to get chapstick some time during the night. The investigators inexplicably failed to verify that claim in a timely manner. A simple review of the video tape would have proven his claim and prevented this entire conflagration. Instead, they waited until after the video had been overwritten, and all sales records purged, before inquiring.
One explanation says they could make the trip from the crime scene in time if they drove extremely fast the entire way. This would point to guilt. The other explanation is that they could not have made the trip in time and were, instead, down on the valley floor as claimed. This would point to innocence
Two witnesses provided testimony that could have been tainted by personal or financial bias. One, a victim of unrequited love for Becky, made statements that conflicted with the statement made by Robert Pape the day after the crime in 2006. Robert claimed that he knew some facts about the event because he was told by the witness (see this related video). Meanwhile, the witness stated that he did not know those facts until days later. Which subject gets the benefit of the doubt? I suppose, if the witness was unbiased, then he would most likely be believed. This brings us to the subject of 3rd party culpability.
In a pre-trial hearing, Defense attorney John Dolan presented a very compelling scenario where this witness could possibly have been the real killer. This scenario included circumstantial evidence that was every bit as compelling as that against Pape and Smith. It also included damning witness statements that would make any jury stand up and take notice. Inexplicably to my eyes, the judge declared that none of this 3rd party culpability information could be presented to the jury. His reasons seemed easily refuted. THIS MEANS THE JURY WAS DENIED CRITICAL INFORMATION that could drastically impact a reasonable doubt consideration.
Now then, does this potential conflict indicate that this witness had reason to alter his testimony? Add to this the fact that this same witness had family ties within the District Attorney’s office and local politicians. This witness was treated so favorably that he, by his own account, received audio and transcripts of all of his prior statements and interviews with law enforcement, for more than a week, so as to be able to practice up so that he wouldn’t make any missteps on the stand. So, with all of this potential conflict of interest and preferential treatment, which subject should get the benefit of the doubt? One choice implies guilt for the defendants. One points toward their innocence.
The other witness has a demonstrable history of erratic behavior. He is a convicted felon that, as I understand from testimony provided without the jury present, has been caught with firearms and has used them in menacing ways to intimidate people (Felons are not allowed to possess firearms). Apparently he has multiple restraining orders against him. He has acted in ways many people would call ‘delusional’, such as trying to save the public from imagined threats (poisoning of a water park pool by management), by making ‘conditional’ death threats toward park management personnel. He has apparently impersonated law enforcement and supposedly called mothers and told them to come to the morgue to identify their children that, in reality, are not dead. A person going by his name has entered internet comment forums where it appears he assumes multiple personae and talks, in the 3rd person, about how heroic and invincible he is. He even impersonated another witness in this trial, presumably for his own benefit.
As a witness in this trial, his testimony could be interpreted as making him into quite the hero. In fact, it appears his testimony had quite an impact on the jury. Others have testified that he has received favorable treatment from law enforcement and referred to them as ‘co-workers’ and ‘his boys’, presumably for his role in this very trial. Apparently he has stated that he will be eligible for a $100,000 reward for his testimony.
Much of this was kept from the jury. In fact, the witness himself didn’t even have to appear in court, having an ‘actor’ play his part on the stand so as not to further incriminate himself. The defense was denied the opportunity to provide a complete and updated cross-examination. The jury was only allowed to hear a read-back of testimony from a previous hearing. The defense attorneys abbreviated their earlier cross-examinations, deferring to the main trial as a more appropriate venue. Never in their wildest imaginings did they foresee that an actor would take his place and they would not get to complete their examinations. The jury was given no explanation as to why this occurred. Many relevant and potentially critical truths could have been ascertained through cross-examination. Truths that could have dramatically impacted his credibility and, therefore, the credibility of his testimony. Would it have affected reasonable doubt? One can only imagine.
These elements of circumstantial and direct evidence each have reasonable explanations that point to innocence. The jury instructions explicitly stated that, in this case, these exculpatory explanations were to have been chosen as the proper conclusion. Failing to do so was disregarding explicit instructions.
The above circumstances, individually, should point to reasonable doubt at each step along the way. Furthermore, defense attorney Jeff Moore, in his closing arguments, presented an extremely plausible and complete scenario that incorporated each element found in evidence. So those elements, in the aggregate, lend themselves to an overall explanation for the entire case. It was intended to demonstrate how the prosecution could ‘trick’ the jury by weaving a story out of whole cloth to try to incriminate the defendants. But it also, conveniently, provided an all-encompassing counter-argument to to the prosecution’s case. Again, the instructions apply.
Given two reasonable explanations, one pointing to guilt, one pointing to innocence, the jury was specifically instructed to choose the latter. This is a fundamental principle of our specific justice system. Disregarding that principle may have been a horrible mistake.
Unless some timely action is taken, these innocent boys will pay with their lives.
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