The Case for Bifurcated Trials

How we can narrow the odds of seeing another Cameron Todd Willingham.


In July, the Texas Forensic Science Commission found that arson investigators used flawed science in the trial of Cameron Todd Willingham. Willingham was convicted of setting the 1999 fire that killed his three children. He was executed in 2004, despite serious questions about his guilt. The case garnered national attention last year after a David Grann investigation in the New Yorker argued that Willingham was innocent and that there was no evidence the fire was intentional.

There's now another questionable arson-related death penalty case percolating, this time in Pennsylvania, where Daniel Dougherty sits on death row for setting the fire that killed his two sons in 1985. Arson experts John Lentini and Angelo Pisani have found that, similar to the Willingham case, fire investigators in Pennsylvania relied on outdated and disproved science, and that there is no evidence the fire in Dougherty's case was deliberate.

In recent years, DNA testing has exposed some serious problems with forensic science. Forensic specialists often make exaggerated claims in the courtroom, expressing levels of certainty that aren't always grounded in science. In cases where it's certain that a crime was committed and for which DNA is available for testing, the challenge is getting prosecutors to agree to the tests. But in cases like that of Dougherty and Willingham, the question isn't who committed the crime, but whether a crime was committed in the first place.

DNA isn't of much use in those cases. But during a panel discussion at the Georgetown Law Center last year (disclosure: I moderated the panel), Lentini suggested one reform that may help defendants in these cases obtain a fairer crack at justice: bifurcated trials. Courts would hold an initial trial to determine if a crime was committed, then a second to determine who committed it.

The problem, Lentini explained, is that by asking the jury to answer both questions at once, jurors are nudged toward answering both in the affirmative. The fact that there's someone sitting in the defendant's chair can push jurors toward concluding that at least some crime was committed. Once they've determined there was a crime, the person on trial is often seen as the only—or at least most likely—person to have committed it. Furthermore, when it comes to arson and infant death cases, there's often just one likely suspect, and the presence of that suspect as a defendant implies that a crime was definitely committed. In arson cases, it's the person who was home at the time of the fire. In infant death cases, it's the person who was with the child at the time the child died.

Lentini added that these trials can then too easily become little more than judgments of a defendant's character; if the scientific evidence is a wash, the verdict may hinge on whether jurors believe the defendant is a good person, or a person capable of violence. In Willingham's case, for example, prosecution witnesses testified about Willingham's emotional reaction after the fire, and whether it fit that of a grieving father or a man who had just committed murder. The prosecution also brought in a jailhouse informant—a notoriously unreliable source of testimony—who claimed Willingham had confessed to him. Neither tactic is uncommon in these cases, and they can have the effect of getting the jury to look past the scientific evidence that establishes whether a crime was even committed in the first place. Once a witness says the guy was acting strangely, once his cellmate says he confessed, it isn't difficult to see how some jurors might then dismiss doubts about the quality of the prosecution's forensic evidence alleging a crime was even committed.

We already have bifurcated trials in other areas of the justice system. The aim is to isolate the portion of a trial that requires a judgment not influenced by evidence from other portions of the trial. In civil cases, the awarding of damages is often separated from determining liability. In divorce cases the division of property may be a separate proceeding from the determination of who gets custody of the couple's children. In death penalty cases we separate the guilt portion of the trial from the sentencing portion.

In homicide cases where the defense argues that a death was accidental, it makes sense to resolve that question first. Each side would bring in experts, but there would be no defendant in the courtroom and no discussion of who committed the crime. This approach would not only work in arson cases, but also in child molestation cases, infant death cases (where the defense claims the death was accidental), and cases where there's debate over whether a death was suicide or homicide.

In the 20 years since DNA testing began exonerating the wrongly convicted, there's been much talk about how to reform the criminal justice system. Much of it has understandably addressed how to improve the quality of the science used in the courtroom. But it's also important to consider some structural changes, to look at ways we can help juries deliberate verdicts as objectively as possible. In cases where the primary issue is not who committed the crime but whether a crime was even committed, bifurcated trials might be a way to prevent jurors from confusing these questions.

Radley Balko is a senior editor at Reason magazine.

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  1. I like this idea.

  2. Better 100 innocents die than 1 guilty go free

    1. I don’t like that ratio. On the other hand, 1 innocent dying so that 100 guilty also die? Now you’re getting closer.

      1. Unless, of course, you’re the 1.

        1. Ah, but I AM guilty!

    2. In Soviet Russia, all innocents die!

    3. There is no such thing as innocence, only degrees of guilt.

  3. Arguably, this is the purpose of the grand jury system. The implementation, however, leaves something to be desired.

    1. Even when a grand jury works as it should, it is merely determining whether there is sufficient evidence to proceed with a prosecution without considering whether there is evidence of a defense like accident. Bifurcating the trial would require a jury to find, beyond a reasonable doubt, that a crime was committed, something the jury is only required to implicitly find under the current system. It’s generally a good idea not to require a jury to do anything that involves nuance or subtlety.

    2. Implementing a “bifurcated” system would be difficult to implement and convince people of. And as Dave suggests, theoretically this is one of the purposes of the Grand Jury system. So perhaps the best approach to this reform, instead of suggesting a “bifurcated” system is to create specific reforms around the Grand Jury system to help fix this.

      1. Agree on the Grand Jury System. Maybe they should become adversarial, or at least have the same limits on admission of evidence as an actual trial so the prosecution has to go further to initiate its case. This would probably also cut down on prosecutors bringing marginal cases or prosecuting for marginal crimes since each prosecution is now more resource intensive.

  4. The word bifurcated always makes me think of what the Utilikilt people call their manskirts. “It’s not a dress, it’s an unbifurcated garment! Jeez, you guys!”

    1. Why do you even know this, you reprehensible kitten rapist?

    2. Unbifurcated pants are a skirt. And I say this as someone who owns a Utilikilt.

      A kilt is a pleated skirt.

    3. It makes me think of this guy who apparently bifurcated his own penis.

  5. Isn’t that what a grand jury is sort of for, to help determine if, in the most favorable light to the prosecution, is there enough evidence to proceed to a criminal trial. There are issues, forensic evidence being slanted (to put it nicely) to convict, juries being fed bogus or outdated science, and juries being given extremely complicated cases without a chance to really understand the law. I don’t think any of these issues (and I don’t think these are all the problems) will be solved by the separate “is there a crime” trial.

    1. Leaving aside whether grand juries are anything more than a joke, a number of states do not have grand juries. In many states, particularly those west of the Mississippi I think, a criminal charge is filed “on information” by the DA’s office.

      1. In Texas, only misdemeanor cases are tried on an information filed by the DA’s Office. Felonies still require a grand jury indictment, but, let’s face it, grand jury proceedings are kept secret, in my opinion, largely to prevent the future indictment of the law enforcement officers and/or assistant district attorney assigned to present cases to the grand jury. Angered by that comment? Shocked? Watch as your client who is the object of the grand jury’s proceedings, goes into the grand jury room – and you’re required to wait outside and pray your idiot has enough guts to take the Fifth each time they ask something other than his name since he’s not allowed his attorney present during this questioning, which is admissible against him at trial. Present in the room are the grand jurors, at least one prosecutor and at least two armed deputy sherrifs or court bailiffs. Not angry any more? Try to find out what happens in a grand jury proceeding and you’ll really get angry; believe me.

        1. Geez I’m angry enough as it is!

    2. It at least used to be the case in England that this was what coroner’s inquests were for. The coroner’s jury would determine whether the deceased had died from homicide, accident, or whatever. (See, e.g., the book and movie “Rebecca.”)

  6. Bifurcation of the kind suggested in the article is not a good idea. It is not one lay petit jury we want rendering a special verdict on whether a crime was committed, and a second on whether the accused did it. The first would likely not be adequately defended, and the second would be only a special verdict after the prosecution case was prejudiced by the first verdict. What we really want is a grand jury to investigate whether there was a crime, and seek testimony from opposing experts, before it renders its indictment.

  7. I was indicted for saturated fat murder.

  8. Grand juries aren’t really bifurcated, because they determine both whether a crime has been committed and whether a named individual should be indicted for it.

    One advantage to Radley’s approach could be to do away with the bullshit “perjury trap”/obstruction of justice type prosecutions. If no underlying crime has been committed, then no prosecutions of ancillary offenses should go forward. This would mean no Martha Stewart prosecution, no Roger Clemens prosecution, none of the “insufficient respect of authoritay” crap we get now.

    1. Or, RC, we could get rid of the federal law that makes it a crime to “lie” to a federal officer in a non-sworn context. It seems that would be an easier fix.

      I don’t think Radley’s bifurcation method would work at all. Installing an actual Public Defender system in Texas, rather than relying on the judge-appointment system, would be a better fix. Having experts in criminal trials face a Daubert hearing wouldn’t be bad either.

      1. Which is why I would never ever talk to a federal agent. They do not have the competency to distinguish between lying and being wrong. Fuck, my torts professor didn’t seem to either appreciate or comprehend the difference.

        1. You mean you gave incorrect answers on your tests and he or she thought you were lying?

      2. Experts in criminal trials in Texas are subject to Daubert-type challenges. Now, the judges may need a little improved eductation in forensics, but you can strike an expert for lack of reliability.

        1. And in addition, if you have a judge who is literate and you file the appropriate pretrial motion, you can get an expert’s testimony forbidden on the grounds that it doesn’t help the jurors reach a verdict. Most of them, you see, testify to some physical facts or “impression”, namely their conclusions usually subjective in fact; or to their opinion as to whether or not the offense was commited usually in child molestation cases after talking to the alleged victim. Do your homework on the “physical facts” expert’s area of alleged expertise and ask the opinion expert if he can say if the child – usually also a witness – is lying or whether the offense was committed or not. Then argue to the court that this evidence is inadmissible as the Texas Rules of Evidence require that an expert’s testimony must assist the jurors in determining a material fact tending to prove or to disprove an element of the offense. Most expert testimony doesn’t meet even that basic standard.

  9. This brings up the general topic of the need to reform the grand jury system. When this country was founded a grand jury served a county of usually less than 3000 people and crime was extremely rare. It could take a couple of weeks investigating a case, and make sure it got it right. Today, prosecutors dump so many indictments on a typical urban grand jury that it has less than ten minutes to consider each one. We need to empanel grand juries for jurisdictions of about 3000 persons, which is like a voting precinct, and not expect them to devote more than half their time to indictments, leaving the rest for other matters, such as investigating public administration.

  10. One should not talk to any government agent, not just federal. 18 USC 1001 has been interpreted to include a “government investigator” at any level of government, because the feds rely on statements made to other than federal agents. Any conversation needs to be video recorded with a witness and preferably a lawyer present. Don’t even give the time of day to anyone who works for the government as long as this statute remains on the books.

  11. Cameron Todd Willingham is the only person I know of who was executed for liking metal. NEVER FORGET

  12. In the case of a death, doesn’t the (now rarely used) Inquest process, using a Coroner’s Jury, serve this function? If I’m not mistaken, its function is to determine if a crime has been comitted.

    This was dusted off about 10 years ago in a city I lived in. Someone broke into an apartment and was shot by the resident. An inquest was called and the jury ruled there was no crime – matter resolved.

  13. Eastside is right. Isn’t that what a coroner’s inquest is for?

    1. Depends upon the jurisdiction, as each state has its own laws on “inquests”, “coroner’s juries”, and similar pretrial proceedings. Texas doesn’t have ’em, for instance.

  14. It would be good if jurors would see hearsay confessions as described by convicts for what they are, proof that the accused is innocent.

  15. If you are involved in seeking the death penalty for or executing an innocent man, I think there ought to be some kind of charge against you.

  16. If you are involved in seeking the death penalty for or executing an innocent man, I think there ought to be some kind of charge against you.

    1. It almost seems like, I don’t know, murder?

  17. Ought not to have the death penalty in the first place. Convictions are entirely too uncertain: eye witnesses get it wrong – unintentionally, but wrong – snitches lie like rugs and invent like Thomas Edison; physical evidence favorable to defendants is “lost” while the state’s evidence is fudged to prove guilt; pretrial publicity more likely than not prejudices any potential juror you’d like to see sit on a case – literate and interested in what’s going on in their community … should I go on?

    1. Replacing the death penalty with life imprisonment doesn’t really fix any of those problems. Killing an innocent person under color of law is a terrible thing; locking an innocent person up for the remainder of his or her life is not much better.

      1. Still, it’s easier to hire a lawyer or interest some pro-bono samaritans if you’re not dead.

        1. Not to mention that once you are dead, nobody has standing to appeal a verdict either. “never executed an innocent man” is permanently true, as long as innocent is adjudicated by the legal system that will not address the issue of innocence post execution.

      2. Not only is it easier to find help to overturn a wrongful conviction if you’re still alive, it is also a lot harder to go home if you’ve already been killed by the state. That is the principal problem which is definitely alleviated by prohibiting execution as punishment for crimes.

        For those of you who perhaps didn’t get my point here: you can be released from prison if you’re not dead, even if your sentence is life without parole; if you’ve been executed, it is of no consequence to you what results from a delayed appeal of your conviction and sentence.

        1. But it’s generally easier to get people energized about overturning a wrong conviction if there’s a life on the line. The prospect of being hanged, even in the indefinite future, tends to concentrate more minds than that of the condemned man.

          1. Yeah up to but not beyond the point that the condemned dies.

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  19. I’m not clear on the procedure of the bifurcated trial.

    Is the “was a crime committed” trial held only when the state is ready to put a particular defendant on trial? And if the outcome of the preliminary trial is “yes”, but the defendant in that trial is not found guilty, does that mean the state has to go through the “was a crime committed” trial again for a new defendant if they charge someone else? That sounds pretty wasteful.

    But it’s not at all clear how the adversarial system will work if the “was a crime committed” trial is not connected to a specific defendant.

  20. Fake libertarian, anti-Palin alert has been set to the “on” position.

  21. I think this article, while interesting, misses the larger point that the justice system in this country is broken in the first place. For instance, see Amy Bach’s _Ordinary Injustice_, which shows how overworked everyone in the system is (defense lawyers to prosecutors). If public defenders are too overworked to do anything but plead their clients out now, will they really be able to do anything else under a bifurcated system? Consider, as well, that public defenders often have to get all their evidence from the prosecution, because they can’t afford their own independent tests or investigators. I don’t see how a bifurcated system will change the fact that an overwhelming majority of people plead out (some of them innocent). I think the possibility exists that a bifurcated system could result in more innocent guilty pleas. One might imagine that after having “a crime is committed trial” confirmed, the prosecution might have a stronger position in coercing a plea from an innocent defendant.

  22. They already have a bifurcation like this, they just don’t have a jury trial for the first part. The prosecutor judges that a crime has been committed. Not exactly an impartial trier of facts, but there ya go. Theoretically you could overcome this at the “is this particular person guilty of the crime” trial, but really, how likely is that?

    The “milk nymphos” case never had the opportunity to get down to the salient “is there even a crime here at all” portion of the trial, but that is one of the rare, rare cases where the jury actually considers that question. And ironically they didn’t get to consider the underlying crime because the judge determined that the prosecution didn’t tie the defendant to the “crime” at all, which is usually the only question of fact examined by the jury.

  23. Even if there is no solid evidence to convict, jurors let their impressions about the defendant influence their verdict. A man with tattoos and long hair is less sympathetic than one who is clean cut with no visible ink.

    1. Quite right, Cbalducc! That is exactly why the parents of my generation made such a fuss about dressing properly, acting properly and talking properly. And that is also precisely why the present generation of the tatooed, pierced and clothing-phobic has so much trouble finding jobs, let alone any sympathy from a jury. Human nature is what it is. If a defendant looks like a freaky deviant, a jury of non-freaky people are more likely to convict him – or her – of something or anything at a trial. We can scream and rant and rave and “re-educate” all of our children and grandchildren, but the essentials of humanity will not change. One of those essentials expressed concisely with an old saw is that a pink monkey is tore apart chiefly just because he looks different from the brown monkeys who haven’t been painted pink.

      Do the pierced, tatooed and those of deviant behavior have every legal and moral right to those actions? You betcha! Is it imprudent for them to do those things? You betcha! That is my point, in brief: it ain’t sensible or prudent to do some things to which we have all the legal and moral right to do. So we shouldn’t do ’em.

  24. Virginia has bifurcated trials but trial #1 is about the crime and trial #2 is for sentencing because jury gets to sentence the defendants that they convict.

    Hey, why is everyone so down on grand juries? The ham sandwich was found guilty in its jury trial! Yes, yes it’s playing the religion card and appealing that conviction because there were too many Orthodox Jews on its jury.

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