Monday, May 23, 2016

Cognitive Dissonance - Or Maybe He Just Lied

Sure, one or the other is maybe a typo.  On the other hand, maybe not.  Because once you start lying. . . .

It's from Foster v. Chatman, the opinion about racially-motivated peremptory challenges released today by SCOTUS.   You know, the one where Chief Justice Balls and Strikes Roberts views the instant replay and says the Georgia prosecutors who secured a death sentence for Timothy Foster some 30 years ago and have fought tooth and nail to maintain it since then lied through their teeth when they said that race had nothing to do with why they used peremptory challenges to strike all the black jurors.  

Sure, they marked their juror sheets with capital B's next to all the black jurors, then highlighted them in green.  Sure they had a note explaining what to do if they were forced to have a black juror.  But, you know, they just did that so they could be careful about accidentally striking those jurors because they were black.  They'd find a good reason.

And so, when the case came to the Supreme Court and there were two of the struck jurors to evaluate, well, they were ready with what they'd argued over the years.  Eddie Hood, for instance, was struck from the jury because his son was the same age as Foster and had committed a similar crime.  That'd be a good one, though the similarity between young Hood's non-violent theft and Foster's "murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing,"* might be thought, er, minimal(?).** 

But then there's this. 

One of the reasons the prosecutor chose to strike Marilyn Garret from the jury, he said, is that she "did not ask to be excused from jury service."  OK, it's a stupid reason, but race neutral.  Prosecutor just doesn't want jurors who want to be jurors.  Hey, this whole jury selection thing is often no more than gut feelings about the kinds of folks we want.  

On the other hand, one of the reasons the prosecutor chose to strike Eddie Hood from the jury is that he "asked to be excused from jury service."  Which is a stupid reason, but race neutral.  Prosecutor just doesn't want jurors who don't want to be jurors.  Hey, this whole -

Uh, wait a second.  

Like I said.  Maybe one or the other is a typo.  On the other hand.  You know, one of the things about lying is that it's hard to keep the fucking stories straight.

On the other hand, the agents of law and order have no problem with cognitive dissonance.  Consider United States v. Sokolow.  Sokolow was stopped at the Honolulu airport with a round trip ticket to Miami and over a kilo of cocaine in his carry on.  The question was whether the cops had a reasonable basis to stop him.  Writing for the majority, Rehnquist said yes.  Sokolow, you see, fit the profile of a drug courier.  

And what, you may ask, is that profile? Wonder no longer.  Thurgood Marshall explained it in his dissent.  Bottom line:  It's whatever the cops need it to be (citations simplified for readibility).
Compare, e. g.,United States v. Moore (suspect was first to deplane) with United States v. Mendenhall (last to deplane) with United States v. Buenaventura-Ariza (deplaned from middle); United States v.Sullivan (one-way tickets) with United States v.Craemer (round-trip tickets) with United States v.McCaleb (nonstop flight) with United States v.Sokolow (case below)(changed planes); Craemer (no luggage), with United Statesv. Sanford (gym bag) with Sullivan (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously) with United States v. Himmelwright (acted too calmly).
How, they say, can you tell when a politician is lying?  His lips are moving.  Sometimes works for cops and prosecutors, too.

* That's from the first sentence of Clarence Thomas's lone dissent.
** Thomas thought the trial court's acceptance of the similarity was perfectly reasonable.

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