Monday, December 14, 2009

Lies and Psychosis

In civics in grade school, and again in law school, we're taught about the presumption of innocence. Jurors are told about it, too. Defense counsel harp on it. We work hard to educate our jurors about what it means and how it works. To educate our judges, too.

But the dirty secret of the law (OK, it's only one of the dirty secrets of the law) is that the real presumption is the presumption of guilt. When the jurors sit in the box, what they believe is that the defendant is guilty. If not, why would he be there? Where there's smoke, there's fire. Look at him, all lawyered up.

I know a judge, now retired, who used to tell prospective jurors just before voir dire,
You should understand that none of us in the courtroom believe the defendant is guilty.
That was nonsense, of course. The prosecutors believed him guilty, even if they had to talk themselves into the belief. Otherwise, it would be unethical for them to prosecute the poor bastard. Court security believed him guilty. And dangerous. The judge himself figured the guy probably did what they said. Hell, most of the time the guy's lawyers believed he was guilty.

So we struggle to make jurors understand that the presumption of innocence isn't about factual guilt (did he or didn't he do it). It's about legal guilt and what's necessary before that can be determined. And still, when the defendant testifies, it's a question of who you believe. More than one defense lawyer has said to a jury in closing argument, and without the slightest recognition that he was giving away the store and violating every principle of competent representation,
You've heard my client tell you what happened. The question is whether you believe her or the state's witnesses.
NO! IT'S NOT. (Excuse the caps. I get worked up about this.) The jurors can believe the defendant is lying up a storm, and it's wholly irrelevant. The question is never whether the defendant's version of the story is believed. It's whether the jurors believe the state's version.

Except in the real world, it's mostly not. When the defendant testifies, the trial generally ends up as a pure test of her credibility. If the jury believes her, she's not guilty. If the jury doesn't, she's guilty. The state's burden of proof disappears.

Which brings us to State of Ohio v. Freitag, decided last week by the 9th District Court of Appeals. There was only one question at trial: Was Freitag driving over the speed limit in the Village of West Salem? The trial judge said that he was, based on a radar gun. But the court of appeals deemed that evidence inadmissible and sent the case back to the trial court for a review of whether, based on the other evidence, Freitag was guilty.

That's where the lies start to matter.

Freitag made the mistake of testifying at his trial. So did his wife. They both lied. OK, maybe not. It's theoretically possible, I suppose, that they both told the truth. But I don't believe it for a moment. Neither did the judge. Neither would anyone else.

If Freitag had just testified that he wasn't speeding because he knew it was a speed trap and was being extra cautious, you could maybe have believed it. But he couldn't leave it at that.
[I]t was “completely impossible” that he was speeding because he is aware that the police constantly patrol U.S. 42.
His wife went even further over the credibility line.
[H]e was not speeding because he never exceeds the speed limit in West Salem or anywhere else.
And I harbor secret dreams to prosecute. Oh, wait. No I don't.

Anyhow, Freitag's defense included that bullshit. The judge now forced to rely on human testimony rather than the evidence of the radar gun, didn't buy it. Freitag was convicted. The problem was that there had to be some actual evidence of guilt. And there was but . . . .

Well, let's put it this way. The cop's cockamamie story was even harder to swallow than Freitag's. You know, judges are prepared to believe any BS that law enforcement types offer. But even they can go too far.

There was the highway patrol officer who testified that he gave a ticket to anyone he saw driving even one mile an hour over the speed limit on the Ohio Turnpike. It was too much. The judge nearly came over the bench he was so outraged by the bald-faced lie.

The lie in this case was subtler, and more dangerous. Patrolman Ken Roth claimed that years ago, when he first joined the force, he was taught by some unidentified officer in a manner Roth never explained to tell from a car's sound from 150 yards away when it's speeding. He can't tell how fast it's going, just that it's going faster than the speed limit. (Honest, that was his testimony.) He testified that there was a car coming from the other direction, but that he couldn't hear it. All he could hear was Freitag's car exceeding the speed limit. Oh, he also could tell because he saw Freitag's headlights in his rear view and side view mirror. Again, no explanation. He didn't claim to see them in relation to a landmark or to have clocked them or anything. He just saw the headlights and could tell Freitag was speeding.

The testimony was, the court of appeals said, "incredible."

Interesting word that. It means not credible/ not believable. Put differently, testimony that isn't credible is testimony you can't believe. If you don't believe what the cop said, then you think the cop is - what's the word? Oh, yeah. LYING. When you're under oath, that's perjury. It's a crime.

Did the court say anything about lying? About perjury? Nah.

Why go there? You can't just go about accusing police officers of lying under oath. Then someone might have to charge them with a crime. And somehow the judge would have to find them not guilty or he'd disturb the whole system with a demand that cops only testify truthfully.

Of course, there is a possibility other than dishonesty. It's possible that Patrolman Roth actually believes he can tell from how a car sounds whether it's speeding, even if he can't tell how fast it's going. If he believes that, then he isn't perjuring himself when he says it. Rather, he's demonstrating that he's delusional.

So here's what we know. When he testified in Freitag's case, Patrolman Roth either committed a crime or revealed that he suffers from psychotic delusions.

Either way, the good news is that there's nothing to stop him from keeping his job.

The people of West Salem may take what comfort they can from that.

H/t Jonathan Turley and Kevin Underhill.

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