By Scott Graber
It is Friday, early, and this morning we have a verdict in Donald Trump’s “Hush Money” trial. We don’t know how the deliberations went, but I suppose we’ll get endless speculation in the next few weeks on CNN, FOX and from journalists who still print their stories.
This trial has been a tutorial on evidence (and trial procedure) for many non-lawyers. We learned, for example, that closing arguments are not evidence—these summations don’t go into the jury room like the charts, written memorandums, e-mails and photographs.
We learned the last words a jury hears come in the form of instructions from the trial judge — how the jury must laminate the “law” upon the “facts” that came into play during the trial.
Facts can be diagrams, writings, sometimes animated videos that come into evidence with a smooth narration from an engineer or some other well-paid, flown-in expert.
In this connection there is an article in the New Yorker about one such chart that got into evidence in England — a chart that apparently convicted a young nurse of murdering seven new-born babies. The New Yorker said of this chart;
“The case against her gathered force on a single diagram shared by the police, which circulated widely in the media. On the vertical axis were twenty four ‘suspicious events,’ which included the deaths of the seven newborns and seven other instances of babies suddenly deteriorating. On the horizontal axis were the names of the thirty-eight nurses who had worked on the unit during that time, with Xs next to each suspicious event that occurred when they were on shift. Letby was the only nurse with an uninterrupted line of X’s below her name. She was the one ‘common denominator’ the ‘constant malevolent presence’ when things took a turn for the worse.”
“It (the chart) gave an impression of mathematical clarity and coherence, distracting from another possibility: that there had never been any crimes at all.”
The New Yorker writer then moved to the “totemic status” of the National Health Service in Britain — the closest thing to a state religion — and how that system has broken down as a result of underfunding. The piece then talked about the hospital in question, Countess, and its deterioration with regard to infant mortality.
The New Yorker then went into records, reports and notes surrounding each infant death, essentially saying that Lucy Letby was blameless other than the fact that she was at the scene in each instance. Although these records showed no foul play they do track Nurse Letby’s emotional devastation and her physical deterioration as the babies died.
Eventually hospital authorities told her she was being “reassessed” because she was the common element “in the cluster of deaths.” Eventually she was indicted; and then convicted on the basis of the single chart showing she was around when each of the seven infants died.
Immediately after the verdict statisticians began questioning the chart, especially the fact that it was limited to 24 “suspicious events” rather than more suspicious activity over a longer period of time.
“Shafer said that he became concerned about the case when he saw the diagram of suspicions events with the line of X’s under Letby’s name. He thought it should have spanned a longer period of time and included all the deaths on the unit, not just the one’s in the indictment.”
“For one baby, the diagram showed Letby working he night shift, but this was error; she was working day shifts at the time, so there should not have been an X by her name. At trial the prosecution argued that, although the baby had deteriorated overnight, the suspicious episode actually began three minutes after Letby arrived for her day shift.”
In the United States the trial judge is the “gatekeeper” deciding whether or not the exhibit is reliable, probative and is not prejudicial.
Apparently the defense only had a threadbare theory that said an over-extended, underfunded Health Service was actually to blame. Apparently the defense could not reduce that notion to a mathematical formula or a chart. And, apparently, this jury wanted something statistical from the defense team.
“Our predilection for causal thinking exposes us to serious mistakes in evaluating the randomness of truly random events,” writes Daniel Kahnenman in “Thinking Fast and Slow.”
Even though the United Kingdom has its own “presumption of innocence”, Lucy Letby needed numbers, a theory of her own, and experts to indict the National Health Service.
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at cscottgraber@gmail.com.
