Thursday, August 12, 2010

One Foot After the Other

Frankly, there's just too much to talk about.  Yet it all, somehow, seems to come together.  Hang in here with me.
* * * * *
First thing Yesterday morning, there was Norm Pattis ruminating (as he does better than anyone) about how we treat the victims of crime.
Connecticut's constitution gives alleged victims of crimes certain rights. Among these are the right to be heard before the court accepts a plea bargain, the right to be heard at sentencing and the right to be treated with fairness and respect. Surprisingly, the constitution does not give to victims the most fundamental right of all: the right to stop a prosecution they do not want to take place.
Norm represents a woman who falls into that last group.  She wants to stop a prosecution of the step-father she once accused of sexually abusing her.  Norm pleads with the prosecutor and the court.  He files motion after motion.  To no avail.
Jamison Koehler took up the same theme, this time in the context of domestic violence.
Clearly, it can be difficult for a prosecutor to determine whether the complaining witness’ recantation is legitimate.  It could be that the witness did in fact concoct or exaggerate a story in the heat of passion.  It could also be that the witness is being pressured or threatened not to testify or that the witness has simply reconsidered the benefits of having the defendant sent off to prison.
Quoting Norm, Jamison sees a problem larger than the prosecutor's trouble.
As Pattis says, there is something wrong when “victims can object to punishment, address the court about a defendant, be advised about the proceeding and more or less be treated well” but “don’t have the right to tell the court that the prosecution ought not to take place at all.” 
The rights of victims apply only to support prosecution and vindictiveness.  Not to oppose it.  Well, yeah.  The working assumption of the law, and of so-called victim rights advocates, is that real victims want the guilty SOB to pay.  It plays out most dramatically in death penalty cases.  "You don't want the guy to fry?"  Then you must not really have loved your mother-father-sister-brother-son-daughter-husband-wife-lover.
And of course it's wrong.  Those victimized by criminal acts, even those who experience the murder of a loved one, they're all different.  Different things move them.  Talk to the folks at Murder Victims' Families for Reconciliation or Murder Victims' Families for Human Rights.  They'll tell you that they honor the memories of those they lost by opposing more killing.  One size doesn't fit all.
But if individual victims of criminal acts are varied and complicated, the whole enterprise of victim participation/rights is misguided.   Sure they should be treated with "fairness and respect" (whatever that means) by the powers in the system.  So should everyone.  Nobody deserves to be stepped on by the system, treated like pond scum.  That's a basic rule of any civil society.
But that's both vacuous and irrelevant.  The larger truth is that Connecticut is wrong to give the individual victims of criminal acts any voice at all in the criminal law system except sometimes as witnesses.  I've talked about this before (here, for instance).  Scott Greenfield summarized it.
I've often argued against the popular "victim's rights" legislation and agenda, which seeks to make crime victims a third player in the criminal justice system.  Its advocates, such as Paul Cassell of Volokh Conspiracy, argue that they are entitled to a vote, particularly about disposition, sentencing and restitution, that trumps the prosecution.  This flies in the face of the concept of criminal law, which seeks to vindicate societal rather than personal interests, but that doesn't prevent the assertion of the victims' "right" to be a participant.
The individual victim?  The remedy is to sue the bastard who caused the pain.   That's what civil law is for.  Criminal law is about the state, the body politic.
And since the harm criminal prosecution is designed to address is to the social order, to the fabric of society, it follows that the individual victim should have voice neither in the decision to prosecute nor in the decision not to prosecute.  That's counter-intuitive for most people, and as Norm says, it's not the law, but it's supposed to be.
But even if you buy into the idea that victims of criminal acts have a proper role to play in what we call the criminal justice system, and even if you acknowledge that those who favor reconciliation over revenge can still be real victims, there are still problems: We don't know who actual victims are, and they don't know what they're talking about.
There are three questions in every criminal case.
  1. Did the event happen?
  2. Was the event (if it happened) the crime charged (or any crime at all)?
  3.  Is the defendant the guy who did whatever it was?
Question 1 is fundamental.  It's a common problem in sex offense cases and domestic violence, but it happens in thefts and assaults and bank fraud and all sorts of other criminal contexts.  Did it happen?  Have the police and prosecutors jumped to the wrong conclusion from the evidence?  Did the self-described victim just make it up?  Did someone else make it up and force the so-called victim to make the allegation?
Question 2 is more nuanced.  Was the act self-defense?  Did she consent?  Was it an accident?
And then there's question 3.  It's the stuff of detective novels.  And too often a real problem.
* * * * *
Consider, please, the case of Kevin Keith.  I've written about him before.  Ohio has his murder planned for September 15.
Wednesday morning was his hearing before the Parole Board which will make a recommendation to Governor Ted about what he should do.  Here's the very short version, the first and last paragraphs of Keith's written application for clemency.
Kevin Keith is innocent. At least four people saw Kevin a town away when the shootings happened. And there is no physical evidence that links him to the murders. Richard Warren, the primary eyewitness, never got a good look at the shooter because the shooter wore a mask. He told four different witnesses that he didn’t know who shot him. The other two surviving victims who knew Kevin did not identify him from the photo lineup. Quanita Reeves specifically told police that Kevin was not the shooter.
. . .
Based solely on unreliable eyewitness identification, Kevin Keith was wrongfully arrested and charged with three counts of aggravated murder and three counts of attempted aggravated murder. The eyewitness identification cannot possibly be right because Kevin was in a different city when the shootings occurred and was seen by several people. Sadly, while Kevin has been on death row for crimes he did not commit, the likely killer—Rodney Melton—has avoided being held accountable. Because the evidence of Kevin’s innocence is so strong, he asks the Board to recommend a full pardon to the Governor.
The problem is that Keith got convicted before much of the evidence of his innocence (and there's a lot, read the clemency application) was revealed. 
But there's evidence the other way, too.  And, at least as Andrew Welsh-Huggins reported for the AP, Members of the eight-member board expressed doubts Wednesday about Keith's innocence.
As always, I don't pretend to know who did what on that night in 1994.  What I know is that there's more than enough confusion and uncertainty to go around.  Witnesses on both sides have made statements and recanted them.  The evidence is tainted and ambiguous.  The cops, it seems clear, settled promptly on Keith as a suspect and wholly ignored evidence pointing at other compelling suspects.  Bad police work, bad prosecution, bad defense counsel.
And all those courts that have looked at the case since then - none looked at all the evidence.  And none asked whether all of that evidence, taken together, really adds up to proof beyond a reasonable doubt that he did it.  If it doesn't, why then he's legally innocent, regardless of the facts.  That's our system.  Like it or not.
But nobody goes there.
And Governor Ted gets to decide whether Keith should be killed.
* * * * *
I just read Scott Turow's Innocent, his sequel to the 1987 blockbuster Presumed Innocent.  Like that book, the plot is wildly implausible and feels, from the moment it opens, wholly and weirdly contrived, almost like an exercise in plotting.  I find the result unsatisfying, as I find Turow's prose overly glib and his characters not models of psychological depth but stick-figure types.  (I seem to be largely alone in this view.  Innocent has been widely praised as not just a page-turner, which it is, but as a superb novel, rich in insight and beautifully told.)
But what Turow does brilliantly, and why I bring it up here, is capture some of the feel of trial.  I've written before that real-world trials are mostly boring, and that's true.  It's not true of the trial in Innocent, of course.  (Nobody would buy the book if it were.)  But when the case is complex and the prosecutor and defense counsel both superb, there's a dynamic, a rhythm to trials.
It's going well.
It's going poorly.
We've got 'em on the ropes now.
Shit. We're fucked.
But the damn judge. 
Turow gets that.  And in that, there's the drama.
Even more, Turow gets at the one, single, fundamental truth of trial.  He puts it in the mind of Tommy Molto, the prosecutor, but any courtroom lawyer knows it.
After trying cases for thirty years, Tommy knew that at this stage of the proceedings, you drank your own Kool-Aid.  You needed to believe you were going to win to have any chance of convincing the jurors, even while you had to remain in the grip of paranoia.
* * * * *
That uncertainty, that paranoia, is real.   But so is the need to drink your own Kool-Aid.  You can't stand up in front of the jury, the judge, the panel of judges and sell something (and that's what you're doing, you're selling) you don't believe.  Ask any actor.  (Or any good commission salesman.)
The thing is, though, the space between what you believe, what you have to believe, what might even be true, and what the jury or judge or panel of judges will end up believing . . . that's the space you can't fully control.
It's the uncertainty.
Because anyone who's been at this for any length of time (except maybe Gerry Spence, who claims never to have lost a case), knows that you occasionally win when you should lose and sometimes (more often, alas) lose when you should win.
Over at Preaching to the Choir yesterday, Sarah said, with sadness, what those of us in the trenches (and especially the appellate trenches) all know.
Some days, reading through criminal case law, it seems clear that there is really only one standard, one guiding principle behind every appellate court decision:  apply the rules in whatever way will screw the defendant. 
Sure.  It's not just some days.  It's every day.   I see lawyers and judges (and law professors especially) talking about the majesty of the law and explaining that case law says you win and that this or that issue is a no brainer.  And I know the truth:  You'll probably lose.
I've said for years (and here, for instance, in this blog) that I don't believe in the Law.  (That's the uppercase version, the one we honor in theory.)  The Law is just the fictional framework in which we act.  The cases, standards of review, the stuff of law schools and textbooks and moot courts and briefs and motions and arguments to judges, that's just the language we have to use.  The reality is that the system is stacked against our clients and that far too many judges will do whatever they can to assure that we'll lose.  It's rarely as conscious as I'm making it sound, but it's every bit as real.
* * * * *
Which finally takes us back to the discussions of Justice we had around the blawgawsphere a couple of weeks ago.  What struck me last night was how odd that in all those posts and comments, in all the back and forth, nobody quoted Thomas Hardy.  It's the last paragraph of Tess of the D'Urbervilles.
"Justice" was done, and the President of the Immortals, in Aeschylean phrase, had ended his sport with Tess. And the d'Urberville knights and dames slept on in their tombs unknowing. The two speechless gazers bent themselves down to the earth, as if in prayer, and remained thus a long time, absolutely motionless: the flag continued to wave silently. As soon as they had strength, they arose, joined hands again, and went on.
Does Hardy speak with irony?  What is Justice, anyway.  Must we look to Aeschylus and the Orestia?  What about, say, Milton and Paradise Lost?  Again, from the very end, as Adam and Eve are turned out of Eden.
                                 . . . for now too nigh
Th' Archangel stood, and from the other Hill
To thir fixt Station, all in bright array
The Cherubim descended; on the ground
Gliding meteorous, as Ev'ning Mist
Ris'n from a River o're the marish glides,
And gathers ground fast at the Labourers heel
Homeward returning. High in Front advanc't,
The brandisht Sword of God before them blaz'd
Fierce as a Comet; which with torrid heat,
And vapour as the LIBYAN Air adust,
Began to parch that temperate Clime; whereat
In either hand the hastning Angel caught
Our lingring Parents, and to th' Eastern Gate
Let them direct, and down the Cliff as fast
To the subjected Plaine; then disappeer'd.
They looking back, all th' Eastern side beheld
Of Paradise, so late thir happie seat,
Wav'd over by that flaming Brand, the Gate
With dreadful Faces throng'd and fierie Armes:
Som natural tears they drop'd, but wip'd them soon;
The World was all before them, where to choose
Thir place of rest, and Providence thir guide:
They hand in hand with wandring steps and slow,
Through EDEN took thir solitarie way.
Or perhaps Sir Francis Bacon who began "Of Truth" (which appeared first in his volume of Essays) this way.
WHAT is Truth? said jesting Pilate; and would not stay for an answer.
* * * * *
There's another, more nuanced problem with Innocent.  A last sweet taste that simply doesn't ring true.  It's when the prosecutor with integrity turns on the one who cheats to achieve what he believes to be justice and then manages to undo the damage of the cheating with, it seems, no more than a phone call. Uncertain himself of the truth.
Those of us in the trenches know how often that happens.  Frankly, it doesn't.  The reasons are many, from confirmation bias to a dishonesty in the system to a belief in "Justice" however derived to willful ignorance to, finally, the system's own unwillingness to allow fixes.
* ** * *
There is no purity in this business.
It's not that we're without ethics, it's that ethics don't cover the world.  Morality is an issue, too.  And something like fairness.  But there's also the fact that it's a job.  It's what we do.
Prosecutors are supposed to seek Justice but they don't know what it is any more than I do.  On my side of the aisle, we defend.  That's our job.
It is, I believe and have argued before, a noble and honorable job.  It's one I'm proud of and care deeply about.  To the public, though, and as demonstrated by the cocktail party question, it's less than clear that it's clean and decent to blow confuse and misdirect, to question truth (as if truth were ever ascertainable, or even fully "true").  Those who don't get it quickly probably never will.
But it's the work.  And we go on because that's what we do.  All of us in this enterprise.  
Ideally, we all do not just the best we can, but the best there is to do.
To make it work like it's supposed to.
Day after day.  One case at a time.
The thing is, and at last I come to the end, it's all we've got to keep the wolves at bay.


  1. That uncertainty, that paranoia, is real. But so is the need to drink your own Kool-Aid. You can't stand up in front of the jury, the judge, the panel of judges and sell something (and that's what you're doing, you're selling) you don't believe. Ask any actor. (Or any good commission salesman.)

    I don't know where you dredged up this old homily about selling something you don't believe in, but you're wrong. To paraphrase, you are wrong, wrong and wrong. Not right.

    I know this because, you see, I've done it. I spent ten years doing it - successfully telling lies to people and groups of people. I knew what I was doing. I was, and still am, very believable. The people I worked with did the same thing, and were good at it. Those that were not good at it didn't survive.

    One of the best confidence men I've ever met told me once, "Jack," he said, "the one thing you shouldn't do is believe your own bullshit. As soon as you do that, you're in fuckin' trouble." His words, not mine. He's right, too. Just as soon as you start to believe your own lies you are sliding right into deep water with a cider block wired to your ankles.

    I don't agree with everything you write, and from time to time you commit logic fallacies that are the size of a billboard with the same decorum and aplomb of a Presbyterian usher passing the collection plate on Sunday morning. For instance, and this is one of my favorites, you cannot logically prove a negative. DNA testing will not prove Big Willie Dixon didn't rape Mary Whitechild, but depending on test results it could easily prove that the DNA evidence recovered at the scene does not belong to Big Willie, and if that is the only evidence that the prosecutor has then his case will fold up faster than a three-card monte dealer facing a ten man bunco squad. A New York bunco squad. The thing is, being an attorney you know about this logic fallacy as well as a dozen others you could trot out anytime you like, but then you go right ahead and commit the fallacy anyway. This latest, however, goes beyond the pale.

    People can and do sell things and ideas that they have no belief in, that they know to be untrue and it happens all the time. The prosecutor's behavior that you (and I) find despicable is a prime example. The prosecutor isn't stupid or completely ignorant. He knows what's going on. He doesn't care.

    Kool-aid my grandmother's venochie. I'll give you Kool-aid.

  2. You've been a salesman, Jack. All I've done is teach and practice law. I'll defer to you on selling. But I'll stick with what I said on law. You believe it while you argue it.

    As for proving a negative - There are negatives and negatives.

    You can sometimes demonstrate that an allegation cannot be true. Sometimes you can do it with DNA. (No, the blood on the doorknob cannot have been from the cut on my hand.) Indeed, scientists really test their theories by trying to prove them false. That's because all they can do otherwise is show consistency, which isn't really proof.

    In any event, legal proof isn't scientific proof. As I've said a number of times, legal proof is whatever the finder of fact ends up believing.