13:37, January 03 211 0 abajournal.com

2019-01-03 13:37:07
Judge’s unusual instruction could upend at least a dozen murder convictions

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At least a dozen Pennsylvania murder convictions are being challenged because of an unusual jury instruction by a judge who has since resigned from the bench.

The reasonable-doubt instruction by Judge Renee Cardwell Hughes led federal judges to order new trials for two defendants, although other judges have upheld the instruction at least seven times, Philly.com reports.

One of the federal judges who struck down the instruction, U.S. District Judge Gerald McHugh, said Hughes began with a standard jury instruction on reasonable doubt, followed by this:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

McHugh ordered a new trial for Basil Brooks because of that instruction.

Hughes told Philly.com she first developed the jury instruction in consultation with lawyers as a response to a jury question. She said the instruction was so effective that she used it in case after case.

“What the instruction says is, ‘Be responsible. Think about it as seriously as you would think about a decision you’re making for someone you care about.’ ” Hughes told the publication.

One lawyer told Philly.com that Hughes used the instruction in at least 50 cases.

Philadelphia District Attorney Larry Krasner appears to be arguing that the instruction was improper, but some convictions should nonetheless stand because it wasn’t prejudicial or because defense lawyers failed to raise the issue, according to the Philly.com story. Krasner’s office dropped an appeal of McHugh’s ruling.

Hughes resigned for an executive position with the American Red Cross after a Pennsylvania Supreme Court justice scolded her for calling a defendant “vile” then ordering it deleted from the transcript.