I wouldn't want to believe it, either

While whatever crime was going on in the street, the defendant claimed that he was upstairs, down the block, gambling in a whorehouse. And he had an alibi witness.

Prosecutors salivate when they hear that the defense is alibi. It's not that they don't recognize the force of a really good alibi, it's that the alibi is almost never really good. Let me be clear. An alibi is not good just because it's true. An alibi is good if it's credible. And it almost never is.

First most people charged with crimes for which alibis are possible don't keep minute by minute calendars of where they are and what they're doing and who they were with. Neither do their witnesses. Cross examination goes roughly like this.

PROSECUTOR: So at 2 p.m. on that Thursday afternoon 26 months ago, you were driving around with the defendant looking for a place to get a pizza with pepperoni and olives?
ALIBI WITNESS: Yeah.
PROSECUTOR: And you remember that particular afternoon and remember the date and time because if you weren't with the defendant you wouldn't have wanted the olives?
ALIBI WITNESS: Right.
PROSECUTOR: What were you doing the day before at 2 in the afternoon?
ALIBI WITNESS: Probably watching TV.
PROSECUTOR: What were you watching?
ALIBI WITNESS: The game.
PROSECUTOR: Which game?
ALIBI WITNESS: Whichever one was on?
PROSECUTOR: What's the date and day of the week and time of the day that you spent with the defendant after the pepperoni and olives?

Nobody knows this stuff. If the witness claims to, the jury thinks he's lying. If the witness admits he doesn't know, the jury thinks he's lying about the alibi.

Second, the odds are that the guy who was driving your client around looking for pepperoni and olives isn't all that credible anyhow. Think about who you spend most of your spare time with. Family and friends, right? Your mother would lie for you. So would your best friend. At least, that's what the prosecutor will suggest. And it's what the jury is likely to believe.

Third, most of our clients don't have particularly savory friends to begin with. The alibi witness who could confirm that the defendant was gambling? His street name was Snake, which the prosecutor used during every question on cross examination. Oh, and Snake explained that he always gambled in whorehouses because "Sporting is my life."

The thing is that the defendant may well have been up in the whorehouse gambling with Snake or driving around looking for a pizza. Truth's a lovely thing is we can figure it out.

What got me thinking about alibis and about Snake was a question a graduate student asked me yesterday. We were talking about arbitrators (don't ask) and he wondered how they can know who's telling the truth. The answer, I said, is that they can't. So I told him about Snake. And then the rest of the class had questions.

So I told them the truth.

See, here's the thing. Our systems aren't about truth. They can't be. Truth is evanescent and fleeting and ultimately unknowable. Scientists do experiments to falsify. If the result of the experiment conflicts with the hypothesis, and if the experiment was done properly, then the hypothesis is wrong, or at least incomplete. If the experimental result agrees with the hypothesis, well, then there's agreement. It's evidence, but not final. There's always another experiment. Cold fusion, anyone?

The only things that are incontestably true are true within a defined framework. Parallel lines do not meet in Euclidean geometry because that's how we define parallel lines within Euclidean geometry. But there's also non-Euclidean geometry, and the answers vary. The universe has a curveture because our definition of universe is limited to this particular one in which we live, but the universe of universes is beyond our ken.

Ohio courts ostensibly observe the "physical facts rule," which says that testimony positively controverted by physical facts is immaterial and should receive no weight. As the Ohio Supremes explained in a products liability case back in 1975, the issue is whether "circumstantial evidence of physical facts is so conclusive as to wholly rebut oral testimony presenting a different version." So if the plaintiff says that he was permanently and totally disable from a war injury but evidence reveals that he reenlisted in the army two more times, the plaintiff won't be believed. (That's an example from a federal case in 1942.)

The physical facts rule makes so much sense that we shouldn't be surprised to discover only a minority of states observe it. (We should, perhaps, be surprised that Ohio is part of that minority, but then it's a rule we observe only nominally. It seems that courts never find circumstances in which it applies.)

The thing to note about the physical facts rule, though, is that it's about what we should believe. Some things, the rule says, simply aren't worthy of belief, so they must not be true.

The key word is belief.

Look, I explain to the client who tells me that it's his word against the word of the cop so he can't be convicted because that's a reasonable doubt. Reasonable doubt is about proof. Proof isn't about what you think or I think or even what's true. It's about what 12 jurors are willing to believe. They'll have a hard time believing you were gambling with Snake when there's all this other evidence that you were doing whatever. You may have been with Snake, but they have to believe that just a little bit for it to help you.

That's both why we have an adversary system and a consequence of it. The parties present and challenge each other's evidence (let's leave aside for now the fact that the defense need present no evidence at all). The jury sifts through it and decides what to believe. The goal in presenting evidence (or challenging it) is to make your position believeable. The long-term hope is that the results will accord with something we're willing to think of as objective truth often enough that the system won't implode.

So there's a metaphorical pathway here. What's presented as evidence is intended to be proof sufficient to engender belief which results in a verdict that, we hope, approximates truth. But the system isn't about truth because that's a will-o'-the-wisp. It's about belief, about whatever it is of which those jurors can be sufficiently convinced. And because it's about belief rather than unknowable truth, it's going to be wrong some substantial-but-impossible-to-know percentage of the time.

That's true of the criminal justice system and the civil system. We're going to get things wrong some. Factually wrong. We need to acknowledge and accept that. The problem is that the post-trial systems are terrible at catching and fixing those mistakes. The reasons are understandable. (Finality is a virtue; new evidence will often be no more compelling of truth than the old evidence; we can't really know the truth, anyhow; for just three examples.) But the consequence is one we should accept.

All of which is what takes us from Snake to Texas Governor Perry.

Snake was probably lying for his friend (and gambling and whoring buddy). But maybe not. We don't know the truth, cannot know the truth, and only have the word of the witnesses. Frankly, at this remove (it's considerably more than 20 years since I read the transcript), I don't recall the crime or the sentence or even the defendant's name. I have no insight whatsoever into whether he was factually guilty, and I have no reason to think anyone has ever even considered pursuing the matter after he was convicted. (I didn't represent him at trial.)

Then there's Governor Perry. He signed off on the killing of Cameron Todd Willingham by the State of Texas back in 2004. Back then, there was considerable evidence that the fire in which Willingham's children died, the fire he was executed for setting, was not set at all. It was, even in 2004 evidence seemed to indicate an accident that Willingham had no part in it. Since then, the evidence of Willingham's innocence - and the complete evisceration of the evidence of his guilt - has become remarkably clear. (The story is fully laid out here; I blogged about it here and here and here.) Three men only, it seems, remain adamantly convinced that Willingham did it.

The prosecutor maintains that although the fire was not arson, Willingham set it in order to kill his children. Yes, that's right, he acknowledges that there was no arson but claims that Willingham killed his children by burning their house down. Like the White Queen, he is comfortable in the belief in impossible things. It is a useful dissociative skill, I suppose, if you don't want to think you're responsible for the death of an innocent man. Hard to blame him for some degree of self-delusion.

Doug Fogg, who conducted the local fire investigation (the state's investigator is dead), maintains that it was an arson and the large number of nationally recognized and respected experts who disagree don't know what they're talking about. The evidence of arson, since fully discredited by scientific experiments, he insists is right and the science is wrong. (See here.)

And then there's Governor Perry. He doesn't explain much, just says he has no doubts. What he has is some power. In this case, the power to conceal. Tomorrow, Friday, the Texas Forensic Science Commission was to meet and review the accumulating body of exonerating evidence in Willingham's case. It would then make a recommendation. If it were objective, the recommendation would be that Texas acknowledge having killed an innocent man.

Except the Guv ensured that won't happen, at least not tomorrow. Yesterday, he replaced three members of the Commission - including its chairman. Hearing's off. Innocence delayed, if not precluded. Truth - it's just a fleeting thing. Why even bother?

There are those, many in fact, who believe the Earth to be no more than 10,000 years old. They, too, insist that the contradicting science is simply wrong. One may acknowledge the depth of their faith without believing that they can serve usefully as experts in the analysis of geological strata.

As I keep saying, I don't know what caused the fire that killed Willingham's three children. But neither does anyone else. What we've run out of is proof, run out of evidence that there was an arson. What remains is belief. Sometimes that's just a euphemism for delusion.

Tom Paxton explained:

I Believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

Oh the building inspector came around,
And he poked his head inside my door
Just as the plaster missed his head
Then he smiled and said,
“Well the building looks quite safe to me."

And I believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The politician told me just the other day,
That he really didn’t want the job at all,
But he would make this sacrifice for me,
If I would only place my trust in him.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And the labor leader told his membership,
That his limousine was no extravagance at all.
His cocktail parties at Miami Beach,
Merely helped him roll the Union on.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The Commissioner of Public Safety called,
On the people to support their local cops,
Who never ever use any extra force,
When a kindly word would do as well.

And I Believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And there seem to be even more believers than ever these days.

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I can't find a free version of Paxton singing it. This is some other guy.
http://www.youtube.com/watch?v=vTNDDNuNB50