The jury consists of twelve persons chosen to decide who has the better lawyer. -Robert Frost
BENNINGTON Vermonts famous Poet-Laureate might not have been too far off in his tongue-in-cheek comment. Preconceived notions by jurors and expectations on how things should look and work can sometimes muddy the waters of what the reality often is. Pop culture - movies, books, and true crime television - can foster unrealistic expectations of courtroom drama, leaving prosecutors and defense lawyers far short of those preconceptions and adding to the misunderstandings.
Last week in Bennington, the four-day trial of a 51-year-old male accused of sexually assaulting a young child repeatedly for several years ended in a mistrial. The jury made up of three women and nine men were unable to reach a consensus in one direction or the other on the fate of the defendant.
The Banner sat down with one of those jury members and spoke about what happened inside the deliberation room, what evidence made any impact, what the jurors were missing, and what - if anything - could have made a difference.
Wayne Powers, 55, was arrested in 2019, accused of three charges: repeated aggravated sexual assault of a child, sexual assault of a victim under 13, and lewd and lascivious conduct with a child.
According to police affidavits and the live testimony of the alleged victim at last weeks four-day trial, the abuse occurred between 2012 and 2017. It was not reported until 2019 because the child was scared to say anything.
It took five years for the trial to take place. After a four-day trial and four hours of deliberations, the jury sent a note informing the judge they were hopelessly deadlocked.
John Clift, 76, a first-time juror from Manchester, was one of those jurors. He reached out to us after the mistrial to talk about what happened.
This was one of the more disappointing things I've ever experienced, Clift said. It was poorly run by both attorneys. I wouldn't want them to advise me about how to tie a shoe.
Clift told us the main issue for him and several other jurors was not the testimony, or evidence - but the presentation of their message and the delivery of said evidence. That, he told us, made a big difference.
I thought that the attorneys were just horrible, Clift said. The prosecuting attorney was mild-mannered. I'm sure he's a nice man. I assume he's knowledgeable of the law, but there was no commitment or display of passion.
"Presentation goes a long way in all situations. And I thought his presentation and his demeanor and so forth was horrible. The defense attorney was slightly better, but it was much referring to notes without any flow, no effective storytelling. No compassion for the case.
We definitely deal with this all the time, said Bennington County State's Attorney Erica Marthage, when told of Clift's comments. The popularity of true crime shows, you know, started with shows like CSI (Crime Scene Investigation)."
Marthage said the reality is that the overwhelming number of cases they deal with, particularly violent crimes, have very few independent witnesses. And they typically have very little science-based evidence.
We talk about it in training new attorneys, Marthage said. It's very difficult to overcome what people expect they're going to see when they walk into a courtroom because it's been dramatized on television for so many years.
When asked what was going through his mind during the presentation of evidence, Clift said he thought the witnesses were "okay," maybe a 3 or 4 out of 10, but that the whole case lacked any passion. He went into the deliberations unsure of guilt or innocence. Clift said the jurors took an initial vote right after getting the case. That first vote was 7-5 in favor of acquittal.
I thought everything was pretty good. I mean, there were lots of intelligent people in that room. People wanted to be sure.
He said the only contentiousness came regarding the grandmothers testimony, with one person in particular becoming very outspoken about her.
He told us that the grandmother could not be trusted, that he knew her or something like that, not personally, but he knew of her and had heard various things.
Clift said after that first vote, they deliberated for about an hour back and forth and then had another vote which leaned more toward an acquittal, 10-2, with two people holding out.
The jury then requested to review the taped interview of the then-7-year-old victim. After the jury saw the video for the second time, another vote was taken. This time, it was 8-4 in favor of acquittal. At that point, Clift felt the jury was deadlocked and that no one was going to change their mind. When asked if he feels the jury gave it enough time to reach a verdict, Clift said a definite Yes.
My attitude at that point is, I think what's best for this young boy is that there is a mistrial. Hopefully, a second shot at this brings more evidence that can be collected, and a better job can be done. I just thought the whole thing with the lawyers was so bad. I just thought these guys were incompetent.
"My overall opinion was, 'This is just ridiculous. Nobody on either side is really being represented.' It was such a lack of evidence. The guy could be completely innocent. A person's life is at stake. Both lives are going to be imperiled by whatever the result is. It was a horrible situation. The presentation of that evidence is critical because we don't know, right?
This has been a horrible experience because of the two lawyers, Clift said. I just think the system that produces this kind of expertise in this critical situation with lives involved was horrible. On a scale of 1 to 10, it's a minus three. They were both poorly represented and deserve much better treatment on behalf of the system.
"If this actually happened, it's horrible for the young boy. Hes got to live with that for the rest of his life. If Mr. Powers is innocent, I mean, how horrible is that? I feel empathy for both sides, because it was so poorly handled, in my opinion. I just didn't feel anything from them (the lawyers). It just wasn't a passionate argument. It was a little detached. Thats a shame.
Marthage says there is variability in how attorneys present their cases, but Hollywood-esque histrionics shouldn't replace simple presentation of facts to the jury.
Everyone has a different trial demeanor, Marthage said. We are supposed to bring trial cases on the evidence and the information we're presenting. Some trial attorneys are more passionate in their presentation than others. Frequently, that can get in the way of a fair and just trial. The cases that end up being appealed or end up being post-conviction relief cases are the ones where you have an attorney that's essentially like someone you would see on TV.
Marthage cited the Leonard Forte case, also involving the sexual assault of a minor, as a good example.
The trial judge overturned Forte's conviction because he said that the prosecutor cried and was 'overly emotional.' It's our job to present the facts and only the facts. At the end of the day. It's about the facts. The fact is people expect these things. This is what we're dealing with. It's frustrating. A lot of time and energy went into presenting that trial. Everybody presents things differently.
"This is a tough topic: child sexual abuse. It's one of those that you're not going to have physical evidence in many of these cases. Often, its just the statements of the victim. That is the evidence. That's a matter of law, and that's something that is very difficult to overcome when we have everyone that watches too much TV and listens to True Crime podcasts.
For now, Powers is a free man. Prosecutor Alexander Burke told the Banner soon after the trial ended that he intended to re-try the case, but there is never a guarantee that a new trial will happen. Witnesses sometimes change their minds or refuse to testify, stories can change, defendants may pass, and evidence can fade with time and memory. There is also no guarantee that given time, there will be any different result.
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Inside the jury room of a recent child sexual assault trial What ... - Bennington Banner