Inadequate Funding of Defense Experts

The New York Times has taken note of a 28-year-old case in which the defense, given only $1,000 to hire an expert witness, hired an inadequate expert.

Anyone who has hired a lawyer knows $1,000 doesn’t buy you much. But when Anthony Ray Hinton was on trial for his life in Alabama, that’s the total amount his court-appointed attorney thought he could spend on a key expert witness in firearms evidence. All he could find for that price was an elderly one-eyed man with a degree in civil engineering who was laughed out of court for his inability to answer basic questions.

If you look at the Supreme Court's decision, the reason that additional proceedings have been ordered in the defendant's case is much less the amount of money that was authorized, and much more the fact that the defense lawyer did not know he could seek more money and thus made no attempt to do so:

Operating under the mistaken belief that he could pay no more than $1,000, Hinton’s attorney went looking for an expert witness. According to his postconviction testimony, he made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. Hinton’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.”...

Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”

This was a capital trial, and the court was not trying to be stingy, authorizing the largest amount it believed was available under state law. But when I read people who have never been involved in indigent expense scoffing at the grant of $1,000 for an expert witness, I have some amazement at the gulf of understanding between what people believe should occur in criminal cases and what typically happens. Note, the attorney fee granted for that capital trial was a mere $1,600. The only way you can represent a client in a capital case -- or any serious felony case -- for that type of compensation is by cutting a lot of corners or by accepting that you'll be investing perhaps hundreds of hours in a case for which you'll ultimately be paid significantly less than minimum wage.

I recall a case I worked in the mid-1990's, where the court granted $1,500 for expert witness fees in an arson case. I commented to another lawyer that the amount was inadequate. He responded, "That's the most I've ever heard of a judge in this county authorizing for an expert." The situation can be at least as dire for defendants who retain counsel, where they will typically have to come up with additional money out-of-pocket to retain an expert. When it comes to expert testimony, between police investigators, crime lab technicians and their own funding for private experts, prosecutors have an enormous advantage.

Fortunately for my client, I found a fire investigation firm that was both highly qualified and willing to take the case, Safety Engineering Laboratories, with testimony provided by Donald J. Hoffman and Michael Kroll, but the $1,500 didn't even cover their out-of-pocket expenses -- they did the right thing, but no expert can devote that type of time and energy into what amounts to pro bono work on a regular basis. I recall also seeing a case in which a lawyer, having been denied adequate funding for certain pretrial work, had taken his claim to the Court of Appeals which had found his claim reasonable and had ordered reimbursement -- but for the time his case and the subsequent appeal were pending, that was money out of the lawyer's own pocket.

Perhaps the environment has changed in recent years, with the increased use of scientific evidence, but given the relatively low funding available for appointed criminal defense work in much of the country I would be surprised if judges are now routinely granting adequate amounts of money for defense experts. The type of funding you see in high profile cases, covered by the media, are anything but the norm.

The Question Was Not, "Is He Going to Prison...."

The question was instead, "For how long".

Nicholas Kristof makes a cogent argument against mandatory minimum sentences - particularly the really big ones that don't allow for much (if any) judicial discretion - but his depiction of the case casts an unfortunate shadow over his argument. Under investigation for burglary, a man was found to have seven shotgun shells and, even though burglary charges were dropped, is looking at a fifteen year minimum sentence in federal prison.

Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them.

“He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”

Kristof links to one of his sources,

But in late September 2011, he went off track. He stole tools, tires and weightlifting equipment from vehicles and a business warehouse. He even had his son with him on one trip, which added a separate charge.

A video camera recorded the burglaries.

Kristof may be correct that for most of his marriage, on the whole the man was a good father, but when you take your child along on a burglary you take yourself out of the running for father of the year.

The state charges appear to have been dismissed not because the state couldn't prove them, but because it's a waste of resources to prosecute somebody for burglary when his state court sentence won't be as long as the federal sentence he's already received. But for the federal conviction, given the strength of the described prosecution case, it's a safe bet that the man would have spent a number of years in state prison. Having taken a quick look at that state's statutes, his sentence in state court appears likely to have been significantly less than his federal sentence, but (without any argument in favor of the laws) it's also fair to note that under other states' burglary laws and habitual offender laws he would have been looking at a sentence at least as long, and potentially longer.

Kristof is correct to point out that long sentences resulting from "mandatory minimums" and habitual offender laws often do represent a very poor use of money and resources, it's difficult to believe he couldn't find a better case to illustrate his point. This is important, because criminal law is one of the fields in which the saying, "Bad facts make bad law" tends to hold particularly true. When you omit important facts to make a defendant seem more sympathetic, you don't just risk a negative reaction when people learn the full facts, you risk worsening an already hostile climate for reform efforts. As Kristof notes, mass incarceration has correlated with a reduction in crime - and while I don't want to read too much into that correlation, as I think the causative element is weak, it is fair to say that a small number of criminals are responsible for a disproportionately large portion of the crime in any given community, and some of them only stop committing crime while they are incapacitated by incarceration.

I don't like this argument, either:

Conservatives often argue that there is a link between family breakdown and cycles of poverty. They’re right: Boys are more likely to get into trouble without a dad at home, and we have a major problem with the irresponsibility of young men who conceive babies but don’t raise them.

Juvenile crime is associated with factors such as domestic violence, alcoholism and drug use in the household, antisocial behavior by a parent, and marital discord. In some households, removing the father will significantly reduce the risk of the children's following in his footsteps. The case Kristof cites involves a father who was not only committing burglaries, but who took one of his children along when committing one of his crimes. The particular argument Kristof makes, that putting fathers in prison leads to their kids being more likely to engage in crime, misses the very important influence that fathers have through their actions. Sometimes it's the father's presence, limited though it may have been, that put the child on the wrong path. As for the men who aren't in prison "who conceive babies but don’t raise them", that's an editorial for another day.

The classic caricature of justice run amok is Inspector Javert in Victor Hugo’s novel “Les Misérables,” pursuing Jean Valjean for stealing bread for hungry children. In that case, Valjean knew that he was breaking the law; Edward Young had no idea.

For the shotgun shells, I can accept that argument. For the burglaries that led to the discovery of the shells, not so much.

I do hope that the man's sentence is shortened, because I don't think that there's much to gain in terms of rehabilitation, just retribution or deterrence in a 15-year sentence. Might the long sentence prevent him from committing more crimes? Certainly, and the man has a record that makes the possibility of additional burglaries a valid concern, but you have to look at costs and benefits, and the law of diminishing returns. This case is not unique - we've been hearing about the results of "three strikes"-type laws since they were first enacted, and some states have rolled back a number of mandatory minimums (sometimes not enough, but it's a start) or revisited the way habitual offenders are sentenced.

Public Criticism of Verdicts

Jeralyn Merritt sometimes goes a bit overboard:

The Bill of Rights was designed to protect the rights of the citizen accused from the awesome powers of the Government. It was not enacted to protect the rights of crime victims.

The presumption of innocence is a bedrock of our criminal justice system that applies to the person charged with a crime, not the victim of a crime.

Self-defense is an affirmative defense that may be raised by a defendant in court in response to a criminal charge.

When partisan politics threatens the Bill of Rights, progressives especially need to get their priorities straight: The Bill of Rights must prevail. Those who disagree do a disservice to the word "progressive." Their backwards thinking is just the opposite.

Merritt has blogged extensively about the Zimmerman prosecution, and she practices criminal defense, so it's reasonable to infer that she's aware of the following:

1. When a defense is available to a defendant as an affirmative defense, the defendant has the burden of proving facts sufficient to support the defense, normally by a preponderance of the evidence.

2. In Florida, a claim of "self-defense" is nominally an affirmative defense, but once the defendant presents any evidence of self-defense, even the defendant's own self-serving statement, the state has to disprove affirmative defense beyond a reasonable doubt.

3. There is no constitutional right (a) to a "stand your ground" rule of self-defense, (b) to have the state disprove your claim of self-defense, or (c) to the ability to raise self-defense at all in most contexts in which the state deems such a defense to be inappropriate.

Merritt asserts,

Trials are conducted in courtrooms, not living rooms. The public has a right to view the proceedings. It does not have a right to inject its opinions into the proceedings or affect the outcome. The jury must base its decision only on the testimony and evidence produced at trial and the law as instructed by the judge. Morality has nothing to do with it.

The Sixth Amendment guarantees a defendant the right to a fair trial by a impartial jury. The jury is composed of the six people selected in court after a rigorous process designed to exclude those who cannot be fair. The public is not a member of the jury. It has no vote. Which is a good thing because the vast majority of the public commenting on this and every other high profile trial are all too willing to take an eraser to the Constitution and condemn a person, without having observed the proceedings from start to finish, viewed the exhibits admitted or read the jury instructions.

Merritt has seemingly forgotten that nobody outside of the courtroom owes the defendant a presumption of innocence, and that it is in fact possible for somebody outside of the courtroom to look at a case and conclude that justice was not served.

Taken at face value, who can argue? The public has no right to "inject its opinions into the proceedings or affect the outcome." But the trial is over, criticism of the verdict has absolutely no impact on that verdict.

Merrett seems to have no problem with criticism of a verdict following a conviction. I doubt that Merrett would condemn critics of the wrongful acquittals in the Emmett Till case or other lynching cases . We, outside of the courtroom, do have the right to criticize the conduct of a jury, the procedures followed in a case, and the laws that we believe (rightly or wrongly) led to an unjust verdict.

The right of self-defense is a limited right emerging not from the language of the Constitution itself, but from common law. There is no question that it would be constitutional for the State of Florida to follow the practice of most other states and place the burden of proof for self-defense on the defendant. Were the State of Florida to pass a law that holds that under circumstances in which a person armed with a gun engages in any course of action that culminates with his shooting an unarmed person outside of his his own home, that person cannot claim self-defense or may do so only to mitigate the charge and not to obtain an acquittal, there's a good chance that the law would be held constitutional.

Had Zimmerman been required to prove self-defense in the same manner that is typically required in other states, odds are he would have convicted himself with his own testimony or would have convinced a lot more people of his sincerity. Given Zimmerman's past statements about the case, and the contradictions and holes in those statements, it was anything but a surprise that he chose to stay off of the witness stand. Those holes and inconsistencies don't necessarily establish guilt, but they represent a big part of why a shadow remains over this case.

Whether a person commenting on the verdict has scrupulously reviewed all of the available evidence or is talking through his hat, it's that person's right to look at a verdict and declare, "An injustice was done here, and we need to think about changing the law so that it doesn't happen again - or at least to ensure that it's a lot less likely to happen again." If a sufficient groundswell of opposition to the verdict arises that we have a public policy discussion, that's normally going to be a good thing - even in those situations where people who know the details of the case often find themselves frustrated by how little the general public knows of the actual facts.

Is the Zimmerman Case a Recipe for a Miscarriage of Justice

In one sense, there can be no question but that the Zimmerman prosecution is a recipe for at least a perception of a miscarriage of justice, because no matter what the verdict there will be an enormous population of people who will be convinced that the outcome was unjust. Chicago Tribune blogger Eric Zorn suggests that the "Zimmerman trial has all the ingredients for a miscarriage of justice", but in saying that he's concerned only with wrongful conviction - which, in fairness, is a far worse outcome from a standpoint of the integrity of our legal system than a wrongful acquittal.

In following the George Zimmerman trial somewhat closely online last week, I noted a familiar pattern:

A "heater" case that draws intense media interest.

Sympathetic victim.

Unsympathetic defendant.

Evidence of innocence explained away with far-fetched theories or else ignored.

Evidence of guilt magnified and bolstered with irrelevant detail and innuendo.

These are among the key ingredients for all the wrongful convictions I've written about in the last 20 years.

I think that Zorn's statements about the defendant and victim are misleading - I cannot recall a murder case in which I've heard more impassioned defenses of a killer, and I would be hard pressed to find one with greater public vilification of the victim. Even Zorn gets into the mix:

Martin wasn't the slight middle-school student seen in first photos of him made public, but a tall, athletic 17-year-old who'd had plenty of time to walk safely home once he knew he was being followed. Zimmerman was of mixed ethnicity, and he'd lost sight of Martin that night while attempting to keep an eye on him for police.

Zorn later expresses to a critic of that statement,

[H]ere http://blogs.chicagotribune.com/news_columnists_ezorn/2012/03/trayvon-martin-shooting-death-initial-police-reports.html I accurately report the documents showing him to be 6 feet' 170 lbs.

Actually, here Zorn accurately reports him to be "5-feet-11, 158 pounds, according to his autopsy". The incident report estimates Martin to be 6', 160 pounds, which is a pretty good estimate under the circumstances but still a good 10 pounds lighter than Zorn's "accurate" recitation. A survey of Zorn's comments on the case suggest that he is trying to be reasonably objective but that his sympathies lie with Zimmerman - and that he's inclined to spin up some pretty convoluted theories to try to turn Martin into an aggressor.¹

If Zorn has followed homicide cases, then he knows that if you're claiming to be innocent of homicide you have two basic defenses, the stronger of which is "That other guy did it," and the weaker, "Some other guy did it". When you're in a position where you can't deny committing the homicide, the defense presented is typically, "The victim deserved to die." That is why the Zimmerman team has made a long-term, concerted effort to attack Martin, to raise allegations they know or should know to be false, and bringing media attention or seeking to use at trial evidence that they know is irrelevant to the case but feeds into the anti-Martin narrative his supporters are so quick to grasp - and let's not forget, leaks and sensationalistic claims from both sides can be reasonably be assumed to be intended to influence the jury pool.

I think that Zorn's comments are better viewed as problems with the adversarial system of justice. The prosecutor in a homicide case will typically try to make the defendant look like a bad person and the victim look like an innocent, because that makes conviction more likely. The defense in a "he deserved to die" case will do the opposite because if the jury buys the notion that the defendant is basically a good person and the defendant deserved what was coming to him, the odds of acquittal go up. When you observe that the prosecutor is depicting the defendant as a bad guy who caused harm to a good person, you're doing little more than describing what happens in criminal cases hundreds of times each day, every day of the week.

The same holds true with regard to how the prosecutor explains away theories of innocence, or emphasizes evidence suggesting guilt. That's the prosecutor's job. It's the job of the defense to emphasize theories of innocence and evidence suggesting innocence. This is why we call the system "adversarial" - the two sides are working at opposite purposes. Although Zorn doesn't acknowledge this, you can only push your "explaining away" so far - if you overplay your hand you risk losing credibility with the jury. If the theory of guilt is far-fetched, the jury is much more likely to accept a theory of innocence that is plausible.

In terms of media attention, I suspect that the reason Zorn, a reporter, sees more miscarriages of justice in cases that draw media attention is because he's a member of the media. Certainly, there are some notable cases in which the police were in a hurry to close out a high profile case and a wrongful conviction followed, but those cases typically have what to me are the better predictors of when a case is more likely to result in wrongful conviction:

1. A heavy or exclusive reliance on eyewitness testimony; and

2. A statement that is contended by the police to be self-incriminating, or where the defendant actually falsely confesses to a crime.

I recall one case in which a defendant's "confession" turned out to be a remnant of an interrogation on a different case, with the police recording the defendant's statement on a recycled tape and, with no actual intent to do so, creating for lack of a better word a mix-tape in which the new interrogation ended right before the defendant in the prior case, whose voice was similar to the defendant's, admitted committing a crime. False confession cases can be difficult at times to wrap your head around - and the reasons that defendants give for having made what was later proved to be a false confession don't necessarily help. The defendant is often, but not always, of lesser education, possibly with a cognitive impairment.

Eyewitness testimony is dangerous because it is highly persuasive, but often contains errors and inaccuracies. If you ask enough questions, no matter how good the memory of the eyewitness, they'll get something wrong. The confidence of a witness is his or her testimony is not a good measure of its accuracy, but juries nonetheless tend to perceive confident, forceful testimony as being strong evidence.

Another factor in somee high profile wrongul conviction cases, is police, prosecutorial, or witness misconduct - including witholding evidence, destroying evidence, fabricating evidence, and coaching or influencing witnesses to give statements on matters for which the witness is uncertain or even where up to that point the witness has given contrary testimony that, if not changed, would be harmful to the prosecution.

On the whole, save for the intense publicity and public interest, the most unusual aspect of the case is that the defendant has managed to raise hundreds of thousands of dollars to cover his legal fees, expert witnesses, investigators, and the like. The publicity has been at worst a double-edged sword, and arguably has given Zimmerman advantages over a defendant who faces similar charges but makes "too much money" to qualify for a court-appointed lawyer, or lives in a jurisdiction where the compensation given to court-appointed lawyers is a bad joke.

I personally believe that the most important prosecution witnesses are going to be the forensic witnesses who describe the fatal gunshot wound and shooting angle, and George Zimmerman himself, through the statement he has made to the police and media about how the shooting occurred. I personally suspect that it is the forensic evidence coupled with those inconsistent statements, not the public reaction, that led to Zimmerman's being charged. To be specific, I suspect that the state's evidence will be that Zimmerman's stories are not only inconsistent, it's impossible to reconcile any of those stories with the angle of the gunshot wound. The question then becomes, will Zimmerman testify with yet another story - and open himself up to an interrogation that will flyspeck all of his prior statements and scrutinize his motivations - or will he instead try to overcome the contradictions through other witnesses and arguments presented by his lawyers.

Regrettably, only two people are in a position to tell us what actually happened that night, one of whom is dead and the other of whom will likely choose not to testify in his own defense.
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1. In the comments, Zorn argues "Trayvon Martin could easily, at a leisurely walk, have covered the distance between the clubhouse, where he was first spotted, and Brandy Green's townhouse in the elapsed time from the beginning of Zimmerman's 911 call, when Zimmerman first spotted him, to the end of Zimmerman's 911 call", and accuses those who question his interpretation of the time line as engaging in speculation. He argues, "To make your story work, Martin has to simply linger there wondering if he's being followed (since I'm sure you don't want to accept the narrative in which doubles back to challenge Zimmerman)" - implying pretty strongly that, despite possession no evidence beyond speculation over the time line, he believes that last narrative. I would like to hear Zorn's explanation of how Martin would have known, after leaving the roadway and walking down the sidewalk between the houses, that Zimmerman would park, leave his vehicle and continue to either follow or appear to follow him into the area where the shooting occurred.

"This Court Will Not Tolerate Allusion!"

Michigan has a crime commonly known as "fleeing and eluding," MCL 257.602a. One might argue that if you are brought before a court on that charge, your very presence undermines the prosecutor's contention that you are guilty of eluding, but... I split too fine a hair - the actual statute does not require that you be proved to have been successful in eluding your pursuer.

A couple of years ago the Court of Appeals apparently took an entirely different view of what it means to... elude:

Defendant appeals by leave granted his guilty-plea convictions of third-degree fleeing and alluding, MCL 257.602a(3)(a), and driving while license suspended, second offense, MCL 257.904(3)(b). Defendant was sentenced as a third habitual offender, MCL 769.11, to 30 to 120 months' imprisonment for the fleeing and alluding conviction and 144 days in jail for the driving while license suspended conviction. We affirm.

People v Kade, No. 285402, 2009 WL 1941372 (Mich Ct App July 7, 2009). A sentence of 2-1/2 to 10 years for alluding? I wonder if that includes a sentence enhancement for mixing metaphors.

Sandusky's Sentence - Bad Joke of the Day

Jerry Sandusky gets 30 - 60 years. He had been hoping for 10 - 12.

(What a... sociopath.)

The Possibility of Parole

George Will is predictably too deferential to Antonin Scalia and his brand of self-serving originalism, but credit where credit is due, he takes a principled stand on a "law and order" issue:

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

I'm not going to argue that there are no juvenile offenders who, at the end of the day, should not spend their lives behind bars in the interest of protecting the rest of society. In some cases, serious juvenile offenses may reveal "the susceptibility of juveniles to immature and irresponsible behavior", but in others they reveal a depravity that will last a lifetime. But there's no reason to believe that, by the time a juvenile reaches or passes his thirties, a parole board will have great difficulty distinguishing one from the other.

When All You See is Race, Perhaps Race is An Issue

Pat Buchanan recently made an observation most people would agree with:

If it had been a white teenager who was shot, and a 28-year-old black guy who shot him, the black guy would have been arrested.

So assert those demanding the arrest of George Zimmerman, who shot and killed Trayvon Martin.

And they may be right.

Unfortunately, he couldn't stop there. His continued argument could reasonably be summarized as, "But why get worked up about it?"

John Casey at The Non Sequitur points out that other mainstream pundits are, in essence, in Buchanan's camp, asserting some form of "relation[ship] between 'unarmed black teenager is shot under puzzling and racially charged circumstances' and 'black people shoot each other all of the time'". Will attempts to characterize the Trayvon Martin shooting as having "been forced into a particular narrative to make it a white-on-black". But unless you're cool with the idea that a black kid can be shot by a white guy, with people like George Will and Pat Buchanan lecturing that it's understandable because black men are so dangerous, and with Buchanan flat-out admitting the credibility of the argument that were the participants races reversed Zimmerman may well be in jail, you can't blame others for injecting race into the discussion.

People like Will and Buchanan should start by examining their own thesis: the idea that nobody cares about black-on-black crime. Via Jamelle Bouie, Ta-Nehisi Coates offers a rebuttal to the notion that African American communities are complacent about or indifferent to black-on-black violence. Bouie observes,

In addition to highlighting the obvious truth that black people care about what happens in their neighborhoods, it’s also worth pointing out the degree to which “black-on black” is a stupid way to understand or contexualize crime. Implicit in the description is the idea that crime committed against blacks by blacks has a racial component—that victims are targeted on the basis of their blackness.

The truth is that crime has more to do with proximity and opportunity than anything else. If African Americans are more likely to be robbed, or injured, or killed by other African Americans, it’s because they tend to live in close proximity to each other. Like most people, criminals almost always take the path of least resistance—nine times out of ten, they’ll go for the easy target.

To put this another way, white Americans are most likely to be victims of other whites, but there’s no talk of a “white-on-white” crime epidemic. Not that this is a surprise, but typical, explainable behavior becomes “pathology” when observed in African Americans. That this still has currency is incredibly frustrating.

Pat Buchanan is a great case in point,

It is a country where white criminals choose black victims in 3 percent of their crimes, but black criminals choose white victims in 45 percent of their crimes.

Choose? We're principally talking about opportunistic crime, are we not? But that mindset makes it easier, I suppose, for people who aren't actually victims of crimes to "choose" the race of their make-believe attackers. What's the point of the Will-Buchanan exercise if not to justify treating all young black men as potential criminals, shoot first and check for Skittles later.

Here's something for Will and Buchanan to think about: In the other cases, nobody is claiming that no crime was committed. Nobody is suggesting that the victims deserved to be victimized by virtue of living in dangerous neighborhoods or having the wrong color of skin. Okay, so the clothing argument sometimes does come up if the victim is a woman, but... come on.

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"Mamas, don't let your babies grow up to wear hoodies...."

Pat Buchanan complains that civil rights leaders are upset about the Trayvon Martin shooting, and hypothesizes that they would be silent had the races of the shooter and victim been reversed. That's quite possible because, oddly enough, people who focus their attention on civil rights issues tend to speak out on cases that implicate civil rights issues. By way of comparison, you could take a certain Irish Catholic commentator and note that he doesn't spend much time railing about the war on Ramadan or the unfair treatment of Muslims by the media, but if the topic turns to Christmas, away we go.... And yes, even if we weren't talking about a police agency with a spotty history on issues of race, the failure to adequately investigate the shooting of a young black man by anybody is likely to raise the hackles of civil rights leaders, perhaps especially those who lived through the 1950's and 1960's.

You would think we could establish at least this much common ground: Whatever else you think, it is appalling that a teenager ended up being targeted and shot because he was wearing a hoodie with the hood up on a rainy day, and doing absolutely nothing that was illegal or otherwise suspicious. It is appalling that people within the police department responsible for the investigation leaked irrelevant material about Martin in order to discredit him. It is appalling how eagerly some people grasp at any sign of trouble in Martin's background - none of which factored into Zimmerman's choices and decisions - as somehow making him deserving of a bullet.

For most people who are offended by the shooting, it's not primarily a racial issue. It's a case of a young man who was pursued and shot for no good reason, with the police dropping the ball on the case. Sure, race comes into play at the level of the police investigation, where the department's seeming acceptance of the stereotype advanced by Will and Buchanan is viewed by many as playing a role in their casual approach to investigation and the decision not to charge Zimmerman. But what those who snicker, "Zimmerman is a registered Democrat" or "Zimmerman's mom was Hispanic" don't (or perhaps aren't bright enough to) understand is that they are the ones introducing identity politics into the case. It's they who don't understand that the justified anger at the shooting of Martin and the treatment of the investigation (and of Martin's family) by the police is not dependent upon Zimmerman's political beliefs or ethnicity.

Trayvon Martin and Confirmation Bias

Confirmation bias involves looking at a situation and emphasizing the details that fit your preconceived notions, while discounting those aspects that conflict with them. In the case of Trayvon Martin, we seem to have one faction who deems it perfectly reasonable to believe that a young African American man in a hoodie, walking alone in the mid-afternoon, must be up to no good - gang activity, drug dealing, burglary, whatever. You find a Facebook page of a man named Trayvon Martin, and he's depicted striking what you believe to be a gangster pose? That can only mean that every black man named Trayvon Martin is a ganster. You see a picture of Trayvon Martin where he doesn't look dark-skinned? That can only mean that the biased media is trying to make him look less scary because, well, no logic there, just prejudice. And of course, despite your own obsession with race, it's tragic that everybody who is critical of the shooting of a 17-year-old who was doing nothing more menacing than walking is turning this into a racial issue. What sounds like a muttered racial slur by Zimmerman, perhaps a completely innocent reference to "bleah" people, right?

From what we've heard so far, it sounds like the police also drew conclusions based upon confirmation bias, failing to adequately challenge the dubious elements of Zimmerman's story and accepting Zimmerman's belief that nobody who looked like Martin belonged in that neighborhood or could be present for anything but nefarious purposes. The fact that they leaked information about Martin's background - facts irrelevant to the shooting incident - suggest that the person behind the leak believes that Martin somehow got what was coming to him, and believes that the fact that he apparently used marijuana supports that position.

On the other hand, you have a documented police officer wannabe with a history of violent confrontations, who likes to tour around his neighborhood playing captain of the neighborhood watch. (That's all documented.) It is pretty easy to go from there to seeing Zimmerman as a guy who wanted to be Dirty Harry - savior of the neighborhood - looking for a "Make my my day, punk" moment until he finally found one. That is, until he made one. The evidence is more sympathetic to this interpretation, given that there's no evidence that Trayvon Martin did anything wrong before being stalked and confronted by Zimmerman, but there is a possibility that Zimmerman has an innocent explanation for what sounds like a racial slur during his 911 call, and that he actually did stop accosting Martin and start to return to his car before a renewed altercation leading up to the shooting.

Let me emphasize, there is a material difference between inferring the worst about Zimmerman and the worst about Martin. With Zimmerman, we're talking about the guy who is still alive and is free to make his case. At any time he chooses he can make a public statement explaining what he really muttered during the 911 call, and provide a plausible explanation of why he would pursue Martin with such vigor, in total disregard of the instruction he was given by the police, then suddenly decide to let him go. He may be entitled to a presumption of innocence if he's prosecuted for a crime, but he is not owed any such presumption in the court of public opinion.

With Martin, on the other hand, there's no evidence that he did anything wrong or suspicious before being accosted by Zimmerman. Even in Zimmerman's own words, Martin's big offenses were walking through Zimmerman's neighborhood, wearing a hoodie on a rainy day, and keeping his hands in his pockets, presumably to keep them warm. Everything else is projection or, in the case of people like Michelle Malkin, opportunistic race-baiting. I don't see any measure by which Zimmerman's actions were reasonable, particularly after being told by the police that they did not need him to follow Martin, and it seems difficult to avoid seeing that his perceptions of race colored his actions, but there's room for a factual explanation that makes him something less than a poster child for a Dirty Harry wannabe who was eager to shoot a "punk".

I'm not going to argue that the public at large should give Zimmerman every benefit of the doubt, or cut him some slack. Given his documented actions, I'm not sympathetic to him. I do think this incident reflects the foolish nature of "stand your ground" laws that transform this type of incident from an "imperfect self defense" - "The fight I started wasn't intended to escalate to this level so I should only be convicted of manslaughter" - to actual self-defense. If the attention that this incident generates causes Florida to restore at least that level of sanity to its statute, that's worth something. Centuries of sound public policy lie behind the idea that you should avoid escalating a conflict to involve deadly force whenever possible, even if that means retreating, and it's a shame that legislators and lobbying groups have played up to the fears and prejudices of... well, people like Zimmerman... and have extended the concept of self-defense to the point of foolishness.

Trayvon Martin, From Pursuit to Gunshot - What Part Am I Missing Here

So far we have a 911 call in which we hear that George Zimmerman is following Trayvon Martin, despite being instructed by the police not to do so. Consistent with Zimmerman's report that, part way through his following Martin, Martin started running, we have the report of a friend of Martin's that he had noticed that he was being followed by a strange man and that she had told him to run.

Next we have the police recitation of Zimmerman's account of how he came to shoot Martin,

Police disclosed to the Orlando Sentinel that there is about a one-minute gap, after Zimmerman called police and before he fatally shot Martin, during which police say they're not sure what happened.

In Zimmerman's version of events, he had stopped following Martin and had turned around and was walking back to his SUV when Martin approached him from behind. The two exchanged words, then Martin punched him in the nose, sending him to the ground, and began beating him.

The police department is apparently attempting to overcome concerns over its competence in handling the investigation by leaking like a sieve - but only information prejudicial to Martin. But what I want to know is this: How did we go from having Zimmerman warm and dry in his car, being told by the police not to follow Martin, to having Zimmerman out of his car and engaging in fisticuffs with Martin?

Even if we assume that Martin got the upper hand at some point, and even if we're willing to take Zimmerman's story at face value, are we to believe that Martin turned around, ran toward Zimmerman, used some form of superpower to stop Zimmerman's moving car, pulled the door open, pulled Zimmerman out and then started to beat him? That doesn't seem very likely, does it?

So what I want to know is how Zimmerman came to be out of his car and in a physical confrontation with Martin, and why it would not have been perfectly reasonable for a 17-year-old who was not doing anything wrong to be very concerned about being stalked then accosted by a man who had no legitimate business accosting him, and who outweighed him by a good 100 pounds. Perv? Mugger? What would go through your mind?

It is inescapable that it was Zimmerman who created the context for Martin's fears, and that it was Zimmerman who in flagrant disregard of the instruction he received from the police chose to continue to chase Martin, and who chose to get out of his car and physically confront Martin. Are we to believe that after all of his bravado, and after starting that confrontation, Zimmerman didn't try to get physical with Martin when Martin continued to try to get away from him? Had Martin shot Zimmerman at that point, wouldn't he have the stronger case for self-defense?

And if that's the case, how the bleep does Martin's act of self-defense, after being stalked by a dim-witted, gun-toting police officer wannabe, become legal grounds for Zimmerman to kill him? Even a keystone kop should be able to see the problem with allowing a person who creates a violent scene to claim self-defense based upon his victim's acts of self-defense. What was Martin's supposed reason for breaking off his stalking of Martin and returning to his SUV, and his explanation for how Martin went from fleeing from being stalked to being a physical aggressor?

Whomever is leaking stuff out of the police department, do us a favor: rather than leaking irrelevant information about Martin, how about leaking the rest of Zimmerman's statement, as surely at least one officer involved in the investigation thought to inquire as to what happened between the time he was safely in his car and when he was being punched in the nose. And how about leaking the autopsy report, as it surely sheds some light on the distance between Zimmerman and Martin at the time of the shooting, and whether Zimmerman was on the ground with Martin on top of him or standing clear of Martin and removed from any reasonable fear of harm.

Interpol - Timely as Ever

"Interpol issues warrant for Qaddafi's arrest" - it's a good thing that Gadhafi is such a minor thug with no history of criminality, or one might be left with the impression that Interpol's priorities are somewhat skewed.

Fabricated Evidence in Criminal Cases

Although I offer this in no way as a defense of prosecutorial or police misconduct, it remains my impression that most police officers and prosecutors who engage in misconduct in order to convict a defendant do so under the belief that the defendant is guilty. (That can be a pretty low internal standard - I've met prosecutors for whom there is no meaningful distinction between "charged" and "guilty", under the rationalization "We wouldn't charge somebody who was innocent.") No matter how sincere the belief, though, it's unacceptable conduct. The point of the prosecution and trial is to prove that the evidence is sufficient - if it's not, the prosecutor should be trying to figure out how to find more bona fide evidence or how to build a better case.

Whatever the motive, there are degrees of police prosecutorial misconduct - planting evidence, intentionally "losing" evidence, tampering with evidence, coercing witnesses, rewarding witnesses, suppressing exculpatory evidence or information.... I cannot place them in an order of "least serious to most serious" as each act can potentially have a dramatically different impact depending upon the full facts of the case.

When I've encountered prosecutorial misconduct, my thoughts have ranged from, "Were you that desperate for a conviction," to "You knew that and you still thought the defendant should be tried for this offense". But in reading about supposed bite mark specialist Michael West, it is difficult for me to imagine that many of the prosecutors who utilized his service, and as his "reputation" grew, perhaps most, had a pretty good idea that they could count on him to fabricate evidence to convict people against whom they had no viable case. And we're talking about life sentences, even death sentences, resulting from West's fraud and fabrication.

When a medical examiner performs and documents an autopsy and finds no evidence of a bite mark, and the prosecutor brings in a "specialist" who not only manages to find bite marks but finds obvious marks that are not present in prior photographs and video, it's difficult for me to imagine that everybody in the prosecution doesn't know exactly what's going on.

When Prosecutions Go Wrong

It's one of those news stories you don't really expect to hear: That three men, convicted of the gruesome murder of three children during the satanic panic of the late 1980's and early 1990's, have been freed - the so-called "West Memphis Three".  Serious doubts were raised about the case before the defendants were convicted, but it appeared that they were destined to spend their lives behind bars.

The case stands in many ways as an exercise in contrasts with Casey Anthony - instead of a reasonably attractive woman, the defendants were three teenage boys at the margins of society, easily cast by the prosecutor as having killed the children as part of a fantasized satanic ritual. One defendant, whose IQ is reported to be 72, confessed and retracted, pretty much sealing his fate. The others, implicated in the confession, were apparently convicted in no small part due to the misconduct of the jury foreman. But the evidence, including the confession, was thin - what you really had were three scary teens crossed with a popular culture that was remarkably receptive to theories of hideous crimes being committed against children by the many satanists they imagined were living among us. The prosecutor is puffing his chest and pretending that the deal that freed the three defendants is somehow made necessary by the passage of time. I'm not going to repeat the facts of the crime, but I don't believe that for a moment. If the prosecutor believed he had a strong chance of again convicting the three he would be refusing deals and insisting upon a new trial.

The problem for the prosecution is not that evidence has been lost - it's that evidence has been found. Specifically, DNA evidence implicating the stepfather of one of the boys, who just happens to be the last person to see the boys alive. If the prosecutor announced that he believed the three were innocent, he would have to explain why he was not prosecuting the most likely suspect (at this point, more likely than the three his deal just released), the answer being "Because the trial and the decades of defense of a terrible investigation and problematic prosecution have created an environment in which a conviction of anybody else would be all-but-impossible". And let's not forget, the deal the prosecutor cut pretty much eliminates the possibility of a civil lawsuit.

The case reminds me of the prosecution of Randall Adams, publicized in The Thin Blue Line. The prosecution in that case, after slipshod investigation, pursued an innocent adult with no criminal record and overlooked overwhelming evidence that the then-juvenile who committed the crime was the perpetrator. Cynics have suggested that the choice to prosecute Adams was motivated in part by the fact that, in a killing of police officers, the prosecutor wanted to secure a death sentence. I think it's simpler than that: Having focused on a particular narrative, the police and prosecutor turned a blind eye toward anything that interfered with their narrative. Was there evidence that should have caused them to reconsider? Yes - and a lot of it. But they weren't interested.

In the "West Memphis Three" case, having quickly secured a confession from one of what we might call "the usual suspects" - kids who didn't look quite right and certainly didn't behave within the expected norms of the community - there was no need to look at the rest of the evidence. Three kids disappear somewhere, the last person to see them alive is a stepparent of questionable character? That's the sort of scenario that should have the police taking a long and hard look at stepdad. But no, they were already fixated on the "evil teenage satanists".

Once you fall under the shadow of suspicion it's difficult to find your way out. In relation to the Casey Anthony case, some argued that the prosecution hadn't shown where or how a crime occurred so she shouldn't be convicted. My response remains, the evidence was legally sufficient for a conviction and for upholding the conviction on appeal. Yes, it was circumstantial, but there was sufficient evidence to support an inference by the jury of first degree murder. Casey Anthony didn't have any satanists to point at when she suggested that she had no idea how her child ended up in a shallow swampy grave, so she was the obvious suspect. What's amazing is how little of a hand wave it can sometimes take to distract your audience from what's actually happening.

Is Cheney Mason for Real?

Although I recognize that some will assert that you can't argue with success, I commented on the defense in the Casey Anthony trial,

If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

A member of the defense team argues that she did in fact believe Anthony to be innocent, although he does not offer to clarify which of Anthony's many stories he believes.

Appearing on NBC’s “Today” show on Monday, the attorney told Savannah Guthrie, “I do believe her story. I believed it from the first time I met her which was several weeks before I was formally on the team.

He denies that the opening statement contained promises that the defense had no intention of fulfilling - their client surprised them by not testifying.

And in other unexpected turns, Casey had also decided at the last minute to not testify during the trial. Mason said that it wasn’t because she was afraid to take the stand, however. She had just chosen not to, and was the only person who would ever know why.

I would be more impressed if Mason had argued that the defense knew that Anthony was not going to testify, although again that would cast doubt on the promises made in the opening statement, given that there was no indication that they built their defense with the expectation that she would testify, given that between her demeanor and her inability to open her mouth without lying she would have almost certainly buried herself within minutes, and given that it doesn't speak highly of either their trial preparation or client control that this was a surprise. (Really, the defense wanted to put her on the stand to explain that she kept garbage in her trunk for so long that her car smelled like it had a rotting corpse in the trunk, coincidentally at the time her child was missing, and that she abandoned her car at an airport because it ran out of gas? No freakin' way did they believe she was going to testify.)

Though nobody coached her on her mannerisms before the court, Mason did say that he and his lawyers did try to keep her emotions down, which he explained was “pretty hard to do when family [testified] against her and people [were] calling for [her] blood like a lynch mob.”

Nobody talked to the client about how to comport herself during court? For a first degree murder trial with a possibility of the death penalty? Seriously? Also, given that Anthony's mother gave testimony that, in my opinion, wasn't even close to credible about searching for "chlorophyll" and accidentally coming up with "chloroform", it seems she was trying to help Anthony. Did her parents get a bit angry with her when she tried to blame her partying after the death of her daughter on her supposedly being molested by her father? Or that her defense accused both of them of being somehow involved in the cover-up of her child's death and disappearance? I expect so - but are we to believe that, also, was a surprise to the defense team?

I accept this:

Mason continued to defend his client and stated that though there was no question she told a lot of stories to a lot of people, it was from a protective mechanism and not out of guilt of murder.

Whatever happened to the child, and whatever her role in the death, I have never sensed that Anthony has suffered even a moment of guilt. You will note that every single one of her lies was directional - minimizing her role in the disappearance and death, explaining away her inconsistent behaviors, attempting to blame others for the child's death and the dumping of the body in the woods and, if that failed, attempting to play "I was molested" as a trump card. As for "Casey’s demeanor and expressions, which were cold one second and crying the next," I didn't follow the trial but what I saw suggested that she became very upset when she started to feel sorry for herself. If sociopathy can be described as a "protective mechanism", I'll concur with Mason that Casey Anthony appears to have a "protective mechanism" in spades.

Given that Mason is claiming to believe that his client was ready and able to testify, implicitly with satisfactory explanations for her countless lies, and that she's now protected from retrial, I wonder when we can expect all of that information in some form of public statement that will make us recognize that this was all one big misunderstanding. No, actually I don't.

The Presumption of Innocence and American Values

If you've attended law school, "I'm a law professor" loses much of its impact as an appeal to authority, but sometimes you just have to wonder.... A law professor at Fordham University, Thane Rosenbaum, has posted an editorial at the Huffington Post that leaves me scratching my head. The gist of it appears to be that jury verdicts should always make sense to laypersons, even if they did not attend the trial, and that we could better achieve that by eliminating our adversarial system in favor of an inquisitorial trial system modeled after some unnamed country (or countries) in continental Europe. To Mr. Rosenbaum, it appears that the biggest flaw of our system is that we presume innocence, and that too many people he believes are guilty are acquitted.

Rosenbaum cites a whopping four examples of the justice system gone wrong, inevitably mentioning the O.J. Simpson case, but also mentioning the Michael Jackson trial and the more recent rape trial of two New York City police officers. Rosenbaum complains that "As civics lessons and as tutorials on the justice system", these cases "were devastating failures", but does he take the time to provide the much-needed civics lesson? To explain how those verdicts were possible within our criminal justice system? How a jury can be outraged by a defendant's conduct, see a lot of smoke, but still find that there's not enough evidence to declare that the defendant is guilty beyond a reasonable doubt? Nope. He seems to instead propose that we simply take a "Where there's smoke, there's fire" approach to criminal justice and if a verdict doesn't resonate as just with the public it can only mean that the justice system is flawed:

Many of these same confounded citizens also threw up their hands with the O.J. Simpson trial: "There was blood in the Bronco, for God's sake, and he was running away from the police!" And there were those who wondered how the plain facts of the Michael Jackson pedophilia case resulted in an acquittal: "He was sleeping in his bed with children that weren't his own!"

Let's step back and look at his examples. The O.J. Simpson case. Let's admit it, the forensic evidence was overwhelming. Even if you believe that officer Mark Furhman planted evidence at O.J.'s house, or that there was a conspiracy to convict within the LAPD, there should have been enough evidence to achieve a conviction. Does this mean that Rosenbaum is correct? That the only lesson that can be drawn from the O.J. case is that our system is hopelessly flawed in favor of the defendant? Hardly.

First, the case was anything but a typical homicide trial, as instead of having an indigent defendant trying to scrape together a defense, or (much less likely) a middle class defendant bankrupting himself trying to scrape together a defense, you had an incredibly wealthy defendant sparing no expense on lawyers and forensic experts.

Second, you had two prosecutors of average skill who were by all appearances used to the overwhelming advantage they had over defendants, and did (or could not) adjust their tactics in the face of a defense that was as well-funded as the prosecution. (Better funded? I don't think so. A prosecutor can call upon state crime labs, police departments, in-house investigators, support staff, advice and support from other prosecutors, and similar resources, and in a case like O.J.'s I would venture that the sky was the limit.)

Third, you had the presentation of the forensic evidence in a manner that was more confusing than edifying. Had the prosecution treated the evidence as routine, the jury might have understood it. Instead they presented a multi-day lecture on DNA, likely both confusing the jury and taking away from how incriminating the evidence was. Was race a factor? Some say so, but I think the leading issues were that the prosecutors simply didn't present their case well, and made a number of other errors (e.g., having O.J. try on the bloody glove without knowing in advance that it would fit) that opened up unnecessary opportunities for the defense.

The Michael Jackson case highlights the wrongheadedness of Rosenbaum's approach. Under Rosenbaum's insinuation, there is only one reason an adult male would share a bed with someone else's child (and it ain't good). So let's go with that. We have parents who (like everybody else in the nation) knew of the first set of accusations against Michael Jackson, sought out Michael Jackson, insinuated themselves and their child into his life, and knew their child was sharing Jackson's bed. Even without assuming that "there can only be one reason...", you have to ask yourself, "What were they thinking?" If you accept Rosenbaum's insinuation, does it not follow that they were thinking, "There could be big money in this for us, just like there was for the first accuser"? And they consulted the same lawyer who helped negotiate the huge settlement from the first case? Rosenbaum is truly at a loss as to how the family ended up with a credibility problem that undermined the prosecutor's case?

As he brings up the Jackson case and that of the two police detectives, perhaps Rosenbaum should be offering a civics lesson in the importance of witness credibility, and within that context also bringing up the DSK rape accusation, a case that is in many ways analogous to the accusations against Jackson. He may want to take a look at the Feministe blog post, "There Are No Perfect Accusers". Both the Jackson and DSK cases involve defendants with a history of being accused of similar sexual impropriety, defendants who claimed that people were trying to set them up (not just in the specific case, but in general), and whose defenses rest primarily upon the impression that the accuser is a grifter.

Only three weeks ago, Strauss-Kahn evoked such a possibility in an interview with French newspaper Libération when he said he thought he was under surveillance and named the three principal difficulties he foresaw if he was to stand for the presidential elections.

"Money, women and the fact I am Jewish." He added: "Yes, I like women ... so what?" He said he could see himself becoming the victim of a honey trap: "a woman raped in a car park and who's been promised 500,000 or a million euros to invent such a story ..."

If we apply Rosenbaum's, "If there's smoke, there's fire" test to that claim, would it not be reasonable to infer that DSK was worried not so much about being set up, but about proactively laying a defense against accusations that might flow from his actual past conduct? Wouldn't a man who was seriously concerned about being set up take much better precautions against such a set-up? When you have an accuser and a victim, both of whom have serious credibility issues, how do you determine which side is "glaringly right"? And given his believe in the importance of public perceptions of justice, shouldn't Rosenbaum be comparing and constrasting those in the media who argue that DSK's rather incredible account of the events in his hotel room is "glaringly right" with those who argue that the final version of events described by the alleged victim is "glaringly right"? Under Rosenbaum's standard, is justice even possible in such a case? Whatever the outcome, some number of people will be offended by the disposition and believe that it represents a travesty of justice.

What is Rosenbaum's explanation for the difference between what occasionally happens in court - a defendant everybody "knows" is guilty is acquitted - and the court of public opinion?

There is an altered reality inside courtrooms. Everyone is breathing a different kind of air. Insulated by all that marble and mahogany, the talking head noise of cable TV and the common sense word of mouth on the street are blocked out by a mute button. What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear and how indisputable the outcome.

From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But, of course, legal trials are, in fact, less interested in what is true than what can be proven.

On the whole that's true, but note how Rosenbaum's language suggests that the courtroom is some sort of ivory tower, while people passively watching news coverage and forming opinions based upon meta-analysis somehow know the "real truth". Note the absence of any sense of history, or explanation of why we have constructed a justice system in which the prosecutor must prove a defendant guilty, why justice is served by rules of evidence and by allowing the defendant to confront witnesses and challenge the evidence, and in which, no matter how heated the public reaction, it is desirable that cooler heads decide the case in court. Instead, Rosenbaum complains that while "legal experts "have lectured us" on the difference between a "not guilty" verdict and a declaration of innocence, "most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference -- nor should they." Note the implicit accusation: If you disagree with Rosenbaum, you probably aren't a "reasonable, sensible, decent" person.

I'm not certain if, when Rosenbaum argues, "nor should they", he is trying to suggest that people should not be "easily be persuaded to appreciate the difference" between a finding of "not guilty" and a proclamation of innocence, or if he is arguing that people simply should not accept such a distinction. If it were the former, rather than complaining about "legal experts" attempting to explain how the justice system works, he should be attempting to do a better job of educating his readers. It thus appears to be the latter. Rosenbaum appears to be arguing that we should do away with the presumption of innocence and the legal standard of "guilt beyond a reasonable doubt", and perhaps even require that criminal defendants prove their innocence. To Rosenbaum, there appears to be only one form of miscarriage of justice - the type that occurs when somebody is acquitted despite a public perception of guilt.

It bears noting that such travesties of justice happen less frequently in other western nations.

Again, this guy is a law professor? If we're talking about countries that follow the common law tradition, which roughly translates into the English speaking world, the criminal justice system is very similar to ours, save for a slightly expanded opportunity for appeals by a prosecutor, made possible by the absence of constitutional language analogous to our Fifth Amendment. At the same time those nations don't have the U.S. notion of dual sovereignty, such that a federal prosecution can sometimes follow a state court acquittal. Either way, in most cases the prosecutor only gets one bite at the apple.

Rosenbaum limits his wistfulness to inquisitorial systems from continental Europe, apparently recognizing that systems of the sort he admires have a rather dismal record of achieving justice in the rest of the world. If you're charged with a crime in China, Burma, Turkey, Saudi Arabia, or any number of other countries that purportedly follow an inquisitorial model, you're pretty much guaranteed that you will be convicted at the end of your trial's search for the "truth". How does Rosenbaum describe the inquisitorial model?

Instead of having both sides fight a zero sum game, the winner-take-all, scorch the earth contests that make American trials similar to its sporting spectacles, other countries place a higher value on having both the prosecution and the defense work to uncover the truth. After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail.

Rosenbaum's first mistake is in his belief that the only people who benefit from the outcome of a trial are the litigants. Our system of justice was constructed upon the assumption that there is a benefit to society in ensuring that defendants receive a fair trial, and upon Lord Blackstone's formulation that it is "Better that ten guilty persons escape than that one innocent suffer". Otto von Bismarck is alleged to have taken the opposite view - that it's better for ten innocents to suffer than for one guilty man to go free. Perhaps Rosenbaum would attempt to distance himself from that philosophy in his endorsement of the European inquisitorial model, but it's fair to note that he failed to tell us what country he believes offers the best interpretation of that model.

Which country in Europe "gets it right", and how much more accurate in Rosenbaum's measure is their system of justice than that of the United States? Perhaps he is thinking of Italy? Probably not Bulgaria. Perhaps he's taken in by the manner in which France shields Roman Polanski from prosecution by the U.S., or how the Swiss justice system managed to deny his extradition to the U.S. in a manner that didn't create even a hint of controversy in the United States. Does Rosenbaum actually know anything about the legal systems in the nations of Europe and their imperfecitons?

A French appeals court today overturned the conviction of six people accused of participating in a pedophilia ring in northern France five years ago, unraveling one of the most mismanaged cases in French judicial history and leaving the nation asking how the court system could have gone so awry....

The case was marred by deep doubts from the beginning, said Yves Jannier, France's attorney general, speaking to the appeals court on Wednesday. He noted that the investigative report by police in July 2002 found "more doubts than certainties" in the accusations, but said, "no one had enough critical sense to stop the machine."

Sure, but how might the public have reacted had they believed that the magistrate was emphasizing the need for stronger evidence instead of seeking convictions? The French, after all, have concerns about their own system. But if you're not concerned about wrongful convictions, the influence of the wealthy and powerful on a system dependent on magistrates, or abuses that occur at the hands of the magistrates, an inquisitorial system may well seem quite appealing.

Rosenbaum concludes by strongly implying in the specific context of the Casey Anthony case, "the truth is known and injustice is not allowed to prevail". It's thus fair to ask, what is the truth in the Anthony case? Is Rosenberg claiming that he was able to sit back in his recliner, watch Nancy Grace rant and rave, and come to a precise conclusion as to when and how Caylee Anthony died? I do have sympathy for the idea that in an inquisitorial system in which the defendant's silence could be weighed against her, and in which the verdict were reached by a preponderance of the evidence, on the weight of the evidence and the massive weight of her lies Casey Anthony would likely have been convicted of some act in relation to her child's death, but the question would still remain open of exactly how the death occurred. Although Rosenberg seems to believe otherwise, absent a confession, the essential facts of Caylee's death are and will remain known only to her mother.

Perhaps the public would be satisfied with an inquisitorial splitting of the baby - "We don't know what happened, but we're going to infer from the mother's lies that she committed some act of abuse or neglect against her child and thus convict of second degree murder or manslaughter" - but such a verdict falls far short of an outcome in which "the truth is known". The distinction thus appears to be that when the truth cannot be determined, Rosenbaum would err on the side of convicting.

Can Prosecutors Appeal an Acquittal

I see that a great many people visiting this blog are wondering whether the prosecutor can appeal Casey Anthony's acquittal on murder and manslaughter charges. No, they cannot. The Fifth Amendment to the U.S. Constitution provides a defendant with a range of protections, including the right to remain silent and protection against being retried following acquittal - protection against "double jeopardy":

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In rare cases, a defendant acquitted in state court might be subject to charges in federal court, typically on civil rights charges. That is most likely to happen when the defendant is a state actor, such as a police officer who has been acquitted in state court of a serious crime against a criminal suspect. I do not personally see a basis for bringing federal charges in this case, nor do I expect a federal prosecutor to be interested in attempting a new prosecution.

Casey Anthony Acquitted - Should it Be a Surprise?

I have not followed the Casey Anthony murder trial, although I suspect you would have to live in a hermitage to have avoided picking up some of the details. I read a summary of the case on CNN today, and... wow. It's easy to see why somebody would be surprised by the acquittal. But should you be shocked? Outraged?

E.D. Kain provides a perspective on the case, comparing the acquittal to various wrongful conviction cases. Wrongful conviction cases are not usually given much media attention for a number of reasons, not the least of which is the fact that the defendants are rarely either photogenic or "nice people". Chalk it up to human nature - it's easy to rationalize away that type of failure of the system with some combination of, "It couldn't happen to me," and "A guy like that deserved some time in prison, anyway." It's a rare wrongful conviction case that forces people to directly confront the fact that, yes, it can happen to you and nobody deserves prison time for a crime they did not commit - and it seems that people would rather have those cases be over in a blink, "Justice was finally served, on to the next story," as opposed to dwelling on their uncomfortable implications.

I mentioned recently that the Anthony case reminds me of a similar missing child case from the Detroit area - never prosecuted. If a body were found the prosecutor would likely face similar issues to the Anthony case - a skeleton, no clear evidence of cause of death, not much to point to except the mother's history of lies. You and I don't have to give the defendant either a presumption of innocence or the benefit of the Fifth Amendment: we can hold their silence against them. It's not unreasonable for us, looking at the same evidence as the jury, to conclude "It's pretty much inescapable that she did it," but the jury has a harder job - finding guilt beyond a reasonable doubt.

One of the difficult calls for the prosecutor in a case like this is how to charge the defendant: You believe it's a first degree murder case, but do you go for the maximum charge and potentially complicate your case or do you go for a lesser charge and ensure that the defendant will get off with a lesser conviction and penalty than you believe she deserves. The Anthony case specifically reminds me of a trial an appellate defender once described to me, reversed on appeal, in which a man was convicted of "negligent homicide" in the disappearance and presumed death of his girlfriend. The only fact that could be established was that he was the last person who could be confirmed to have seen his girlfriend alive. The prosecutor's closing argument admitted that nobody knew what happened, but the prosecutor argued that based upon what was known of the defendant and of similar cases it could be inferred that the victim died cruelly, that she suffered enormously, etc. The jury obviously inferred that the defendant killed her, but with absolutely no evidence of how they came back with a verdict that made no sense, and was not supported by even the prosecutor's argument, hence the reversal.

This case, similarly, reminds me of the first Blogjevich trial and how, following the presentation of a relatively complicated case, the jury hung on most major charges. The retrial presented a simpler, more streamlined case and resulted in conviction. There won't be a retrial in the Anthony case, but it could be that had the prosecutor settled for treating the case as a culpable death resulting from child abuse they could have presented a more direct, less fanciful case and by honing in on how the evidence could not be explained away by accident they might have achieved a conviction. But by making the case about a mother who intentionally killed a child in order to get "freedom", instead of a perhaps more plausible case of a mother who was using inappropriate, abusive means to keep her child quiet (duct tape over the mouth, "where can I get some chloroform"), they allowed the defense too much latitude to explain away the incriminating details or to emphasize how they did not fit with the prosecution's express theory.

I very much question the defense strategy of either promising to present evidence to the jury that they were unsure they would in fact be offering, or outright lying to the jury in order to get certain arguments before the jurors that they knew would not come into evidence. Many lawyers take the position that you should never promise to prove something to the jury unless you know you can deliver. It's such a role of the dice that it's difficult for me to conceive of a lawyer intentionally following this strategy unless he knew the defendant to be guilty. (Why is it, I rhetorically wonder, that lawyers are so rarely picked for juries.) If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

One of the most absurd defenses of Anthony's actions after her daughter's disappearance (which Anthony would have known was in fact her child's death) is offered by Dr. Keith Ablow, resident armchair analyst for Fox News.

Some emotionally vulnerable people can experience mania—the “high” phase of bipolar disorder, essentially the opposite of depression—in the setting of unthinkable trauma or loss.

Even if you despise Casey Anthony, you have to admit that the death of her daughter (if she did not kill her) would qualify as such a trauma or loss. Symptoms of mania could then ensue, including: overspending, hypersexual behavior, sleeplessness and a sense of euphoria (which would be seen in photographs as seeming joy).

No, seriously, the explanation offered by the defense for Anthony's living the high life was that she had supposedly been sexually abused as a child. I expect that Anthony was examined by any number of forensic psychologists, and that the defense (and prosecution) would have been presenting their testimony at the death penalty phase had Anthony been convicted of capital murder. Had there been anything to the notion that she snapped into a manic phase, we would have heard about it. Ablow states, "I’m not saying that anything really happened this way, but it could have. Really." Maybe it could have with somebody else; just not with Anthony.

Anthony can now safely tell the world what happened - she can't be retried on the homicide or child abuse charges. It is my expectation that she won't, for the same reason that she chose not to testify in her own defense: her story won't hold up to even casual cross-examination.

I have spoken with a number of people who followed the trial closely and not one has said that she would have brought back a verdict for first degree murder. The typically thought process is, "I think she did something that accidentally killed the child...." And without the jury's obligation to presume innocence, it's more than fair to infer from that feeling and from the evidence that Anthony did kill her child. I believe the evidence was ample to support the prosecutor's case, such that even had the jury returned a verdict of first degree murder the evidence would have been found sufficient on appeal. But that's different from stating that the jury should have convicted. They're supposed to give the defendant the benefit of the ambiguities in the evidence, even if those ambiguities exist only because of the defendant's silence.

It's unfortunate that this case is more likely to be perceived as a failure of trial by jury rather than a success, as once you get past any perception of "sleazy lawyers" or "unsympathetic defendants" the fact is that our system is designed to err in favor of acquittal. The jury is to find proof beyond a reasonable doubt, something that's hard to quantify but is often expressed in terms of, "It's better that ten guilty men should escape than that one innocent man be condemned." I know that I would be frustrated if asked to serve as a juror in a case in which the only thing keeping me from knowing what happened was the defendant's tapestry of lies, compounded by her subsequent exercise of her right to remain silent. I can't mind-read the jury, but I expect that if they were to give statements they would acknowledge that frustration, but attest that it was their job to put aside those feelings and focus on the evidence admitted at trial.

Update: Jeralyn Meritt at TalkLeft does a nice job explaining the wide range of meanings that can be derived from a "not guilty" verdict.

Criminal trials should not be equated with a search for the truth. They are merely a process for the testing of evidence: Can the state prove the charges against a defendant by proof beyond a reasonable doubt?

Once Again, The Facts Have a Liberal Bias?

A review of the movie, Conviction, on Netflix:

Acting was good. Ugly cast. Story was tiring. Evil cops and DA's, innocent criminal killers. Typical liberal slant. Boring!!!

The film was... based on a true story in which the defendant ended up serving life in prison due to police and prosecutorial misconduct. (And as much as you could make a movie about, say, Roger Coleman, it wouldn't be very interesting.) I wonder what the author of the review would make of The Thin Blue Line.

Wasn't there once a day when you could interest conservatives in freeing the wrongfully convicted, or did Wm. F. Buckley, Jr.'s experience end that experiment.

You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:

I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.

But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:

The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.

In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,

The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,¹ and the jury had believed me.

What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

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1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.