Attorney Alexander Silvert, author of “The Mailbox Conspiracy,” joins producer/host Coralie Chun Matayoshi to discuss motive, circumstantial evidence, burden of proof, reasonable doubt, and spousal privilege not to testify against your spouse accused of a crime.

Jurors in the Eric Thompson case sat for 2-1/2 weeks listening to dozens of witnesses and conflicting arguments on both sides.  After 3 days of deliberation, the jury couldn’t reach a unanimous verdict either way.

Q.  What is a “hung jury?”

In a criminal trial, the jury must reach a unanimous verdict – 12 guilty votes or 12 not guilty votes.  So even if only one juror thinks the defendant is not guilty and the other 11 think he’s guilty, the judge will declare the jury to be “hung” or “deadlocked.”  A mistrial is declared, and the trial is brought to an end without a determination on the merits, returning the parties to the same positions they were in before the trial began. If the prosecution wishes to retry the case, a new trial date is set which will be held in front of a new jury. If new evidence is discovered, then that new evidence can be used at this second trial.

Q.  Is Thompson allowed to go free and what happens next?

A mistrial is not an acquittal, and it is up to the Prosecutor as to whether to ask the judge for a retrial.  In this case, the Prosecutor decided to retry the case and the judge has already set a new trial for October 16, 2023.  Unless there are changed circumstances, a defendant’s bail stays as it was. There is no numerical limit on how many retrials there can be, although it is generally frowned upon by the court to keep trying to convict a defendant time and time again in the hopes that some jury, someday, will reach a unanimous verdict.  A court does have supervisory authority under the due process clause of the Constitution to prevent too many retrials. 

Q.  So much evidence is presented at trial and it’s hard for jurors to keep track of everything, so each side often uses a theme to tell their story of what happened.  What themes did the Prosecutor and Defense use in this case?

The Prosecution described Thompson as a controlling perfectionist who tried to fix his marriage through murder so they could live happily ever after.  Eric Thompson worked hard to start a successful business and save for a downpayment on a $2 million Kahala home.  When he found out about his wife Joyce’s affair with Jon Tokuhara, he made her confess to her parents and apologize for the affair.  He also admonished her not to see psychics anymore because the psychic told her that it was okay to have an affair with Tokuhara.  Joyce’s sister testified that Thompson took some time after finding out about the affair, before he “allowed her to resume her normal life.”  Eleven days before the murder, the couple entered into agreement that Thompson would get the house and sole custody of their daughter if they divorced.  The Prosecutor alleged that Thompson made his wife sign the agreement; the Defense countered that it was Joyce’s idea to prove her faithfulness.

The Defense complained of shoddy police work in that the police focused only on his client to the exclusion of other possible suspects like husbands of other married women that Tokuhara had relationships with or someone collecting on a gambling debt.  The Defense argued that the surveillance footage was “messed up” and that the crime scene was mishandled because the first officer at the scene turned off his body camera for about ten minutes and didn’t report the presence of another officer at the scene who was good friends with Tokuhara.  OJ Simpson’s defense team alleged sloppy police work which made it harder for the prosecution to prove its case.

Q.  Eric Thompson discovered that his wife was cheating on him – did he have a motive to kill her lover?  How important is motive to the jury and does the Prosecutor have to prove it?

No, the prosecution does not have to prove motive, but it can help win their case because juries are made up of human beings who like to know why something happened.  If they can’t find areasonable explanation for why the defendant would have, for example killed someone, that can put reasonable doubt in a juror’s mind which can lead to acquittal. 

In this case,Eric Thompson had motive to kill his wife’s lover Jon Tokuhara after finding out about their affair.  The question is whether he acted upon these motives 6 months after discovering the affair.  The nature of the gunshot wounds (4 bullets to the head) showed that the killing was personal, and that the perpetrator probably knew the victim.  The Prosecutor pointed out that the murderer was in and out of Tokuhara’s clinic within 48 seconds and that Thompson was a skilled marksman who practiced at the gun range regularly and possessed .22 caliber handguns.  The Defense contended that others might also have had a motive to kill Tokuhara, including husbands of other wives who had been romantically involved with Tokuhara, or someone seeking to collect on a gambling debt.

Q.  The only witness to a murder is usually the victim, and that person is deceased.  So, the Prosecutor must then use circumstantial evidence to prove the defendant is guilty. Circumstantial evidence relies on an inference to connect it to a conclusion of fact – such as fingerprints or DNA at the scene of a crime.  Fingerprints or DNA are circumstantial evidence that the defendant committed the crime, because why else would they be there?  What kind of circumstantial evidence was presented in this case?

Surveillance footage showed a man go in and out of Tokuhara’s clinic driving off in a 2014 to 2016 white Chevy Silverado truck.  Thompson owns such a truck.  Surveillance footage shows that a white hat fell onto the road when the suspect hurriedly left the victim’s office.  A homeless man picked up the hat and wore it. Police recovered the hat and found that Thompson’s DNA could have been on the hat.  A burned-out pot in a wheelbarrow found by the police at Thompson’s home could have been used to destroy evidence, and flashes of fire were seen in a neighbor’s surveillance video that evening.

Q.  The defendant in a criminal case does not need to prove his innocence.  It’s the Prosecutor who has the burden of proving that the defendant committed the crime beyond a reasonable doubt.  What is reasonable doubt and how did the Defense try to cast reasonable doubt in this case?

The Prosecutor must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. If the jury looks at all the evidence and has a reasonable doubt, or isn’t convinced one way or another, then they have to acquit. 

In this case, the Defense argued there was “massive reasonable doubt” because it was possible for someone else to have committed the murder. Tokuhara had a track record of relationships with several other married women, may have had a gambling problem, and these other possible suspects were not pursued.  The Defense claimed that the surveillance footage of a man with a white hat was not Thompson and brought an expert witness to testify that the hat did not have Thompson’s DNA on it.  The Defense also contended that the white Chevrolet Silverado truck in the surveillance video was not Thompson’s.  Thompson testified that a burned-out pot in a wheelbarrow found by the police at Thompson’s home was used to de-grease metal tools and that flashes of fire seen in his neighbor’s surveillance video were tiki torches he lit to play with his daughter outside. 

Q.  Defendants don’t usually take the stand in criminal cases.  Why do you think Eric Thompson took the stand?

The 5th Amendment of the Constitution is the right against self-incrimination.  This means that you have a right to remain silent and that your silence does not imply guilt.  Defendants in a criminal case rarely take the stand because it opens them up to cross-examination and they may be questioned about prior unrelated bad conduct, whether or not ever charged or convicted of those acts, to impeach their credibility.    

Eric Thompson testified in a light buttoned-up dress shirt and sweater blazer and spoke directly to the examiner.  His answers were straightforward, including admissions of shortcomings, and he emphatically denied committing the murder. Photos of Eric and Joyce Thompson depicted high school sweethearts at Senior prom and graduation from the University of Hawaii together. Thompson testified that although he was initially upset about his wife’s affair, they reconciled, and their relationship was almost back to what it was before the affair.  He said that Tokunaga had helped him and his wife when they were trying to conceive and couldn’t understand why Tokunaga would become romantically involved with his wife.  He thought about confronting Tokunaga but did not because he did not see what that would accomplish. Photos from Halloween and Christmas after the murder showed a happy family.  On cross examination, Thompson admitted that he entered into an agreement with his wife that if she ever left him, he would get the house and sole custody of their children, but that it was her idea.

Defendants in other recent cases took the stand with different results.  Michael Hirokawa wore a buttoned-up dress shirt and glasses.  Like Thompson, Hirokawa’s answers were straightforward, and he emphatically denied committing the murder claiming he was drugged and therefore could not be held criminally responsible. Hirokawa was found not guilty.  Stephen Brown and Hailey Dandurand each took the stand in the Boinville murder trials and like Hirokawa, they couldn’t deny being at the scene of the crime, so each tried to blame the other for the murder.  Brown and Dandurand were both found guilty.

Q.  What was Thompson’s alibi, and could he show that he was somewhere else when the murder happened?

Thompson testified that on the night of the murder, he was taking bricks to a Waimanalo dump, but surveillance video showed Thompson’s truck bed was empty when he left his house.  Thompson also said that he bought some items at Longs Drugstore that evening using cash (a credit or debit card would have provided proof of his whereabouts).  A security guard on duty at the dump that night was called to rebut Thompson’s alibi.  He testified that he had never seen Thompson before and that bricks were not allowed in the dump.

Q.  Why wasn’t Thompson’s wife Joyce called to testify – she could have told the jury whether her husband went to dump bricks or buy groceries, and she could have told the jury if the flames seen in video footage were really a tiki torch or something being burned in a wheelbarrow?

Under the spousal privilege rule (Rule 505 of the Hawaii Rules of Evidence), the spouse of the accused has a right to refuse to testify, and it is that spouse’s sole decision. However, if the spouse is going to talk about marital privileged communications, then either spouse can invoke the privilege. So, Eric Thompson’s wife Joyce could have testified, but if she spoke about marital communications, Eric could have stopped her (i.e., Joyce could have testified to what she might have seen or heard, but not what Eric might have told her which would be privileged marital communications). This spousal privilege applies when the defendant and spouse are married at the time of the prosecution and does not survive the dissolution of marriage. 

Q.  If convicted in the second trial, what kind of sentence might Thompson face?

Murder in the second degree:  life imprisonment with the possibility of parole.

In cases where the crime is especially heinous or the defendant committed murder before, the defendant can receive an enhanced sentence of life imprisonment without the possibility of parole if they would pose a danger to society, as in the Telma Boinville case where Stephen Brown could face an extended sentence.

Carrying or use of a firearm in commission of a separate felony: up to 20 years or more depending upon the circumstances.  It is a Class A felony which requires a separate sentence from that of the underlying offense, but the court does have the discretion to impose a concurrent sentence.

To learn more about this subject, tune into this video podcast.

Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.