Once More Into the Breach

[T]he court conducting a harmless-error inquiry must appreciate the indelible impact a full confession may have on the trier of fact, as distinguished, for instance, from the impact of an isolated statement that incriminates the defendant only when connected with other evidence. If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case. Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence.

Justice Kennedy, concurring in Arizona v. Fulminante.

Fulminante concerns coerced confessions. It acknowledges, as the courts have acknowledged for years, that coercd confessions are never admissible in court because they're unreliable. When sufficiently pressured, people will say what the questioner wants to hear, regardless of whether it's true. (Take that, waterboarding.) Everyone on the court agreed with that principle.

But Kennedy's concurrence addresses another of the case's issues (it's a strange case with fractured opinions addressing three separate issues and Justice Souter neither opining nor voting on one of them): what's the effect of a confession on a jury. And his point is pretty much beyond argument. It's believed. True or false, the jury believes it.

Why wouldn't they? People don't just go around confessing to crimes they didn't commit. Juries know that. We all know that. And, oh, yeah, we're all wrong.

Obviously not everyone confesses to everything, but lots of people confess to lots of things that just aren't so. Over 200 people confessed to kidnapping the Lindbergh baby (though the man who was charged, convicted, and executed for the crime wasn't one of them). Five young men confessed to raping and brutally beating and leaving for dead an investment banker jogging in Central Park, and served years in prison for the crime they didn't commit. I once had a client who confessed to raping an baby who, police, medical professionals, and prosecutors all properly concluded, had not been raped. In some 25% of the cases of DNA exonerations, the wrongly convicted had previously confessed.

Of course, lots of guilty people confess, too. It's a reasonable assumption, I think, that most confession have at least some truth to them. But the false ones are serious problems. They distract police, lead to the prosecution and conviction of the innocent, and leave the guilty free.

How extensive is the problem? Nobody knows. What we do know is that it's real.

But there's another sort of false confession, too. The one that never occurred. Jailhouse snitches and others seeking revenge or hoping for assistance from police and prosecutors are all too often willing to come forward with the information that someone confessed to them. (The snitching problem is pervasive, and one of these days I may give it a post of its own. In the meantime, read the Snitching Blog.)

Which brings us, once again, to Cameron Todd Willingham. The latest alleged evidence proving (I'm not sure whether it's "evidence" or "proving" that should be qualified with quotation marks) that he killed his kids and was, therefore, properly executed, is his confession. Here's the story. shortly before the execution, Willingham's ex wife visited him. According to her husband, Willingham confessed to her on that occasion. She denies that, and she (unlike her husband) was there. (The whole thing is carefully laid out by Scott Henson at Grits for Breakfast.)

Of course, this isn't news. The claim that Willingham confessed was made and fully discredited back in 2004. But lies have a way of coming back at you. Again and again. Just think about the birthers, the death panel insisters, the truthers, the Holocaust deniers.

And Governor Perry and now-Judge Jackson and David Martin and the Corsicana Sun.

And people will believe.

And it's a damn shame.

Maybe We Could At Least Treat It Like Rocket Science

Seven people who went to my high school, two of them my classmates, are Nobel laureates in physics. Science was just something we took seriously, even those of us with little interest in or aptitude for it. We got the idea that it was real and serious.

When folks come into court and testify as experts about how they've reviewed the evidence and applied the science and the studies and that such and such is true to a reasonable degree of scientific certainty, they're supposed to be who they say they are and testifying as independent experts, free of bias and prejudice. They're supposed to be the wise men who will go where the evidence takes them without fear or favoritism.

Excuse me while I giggle.

There are two problems.

Some of the stuff they testify about is closer to myth than science. That's the case with, say, fingerprint or ballistic or bite mark comparisons (prior post here). Maybe they're right and maybe they're not, but there are no developed reliable standards that have been tested and validated. The "experts" are no more than trained lookers who claim that they can see things we mere mortals can't and, well, those things just prove what they say they do because, darn it, they do. And we, of course, must trust them. They are, after all, the experts.

At the worst, those mountebanks and charlatans send men to prison. Well, no, at the worst, they send men to death row. Actually, still no. At the worst, the men they send to death row based on myth and fantasy get executed in reality and then the governor who signed off on the death warrant after the charlatans have been exposed squelches the investigation of what might have happened. See here and here.

There's another sort of scientific fraud, too. They're the ones who just testify to what the government wants without ever, er . . . . My introduction was Ralph Erdmann. When I went to law school and began practice in Lubbock, Texas he was the county coroner, the forensic pathologist who examined the dead bodies and gave expert testimony about how they got that way. He also served as the contract coroner in many nearby counties in the panhandle.

Coroners are supposed to be those disinterested, pure scientists. Few of them are. They work closely with police, deal with the consequences of crime, and want to help. They work in a law enforcement atmosphere and it has a subconscious impact on even the best of them. Too many aren't the best.

The criminal defense bar knew Erdmann was no good. His testimony was skewed, routinely. He'd somehow support whatever cockamamie theory the state came up with. Some of it was obvious nonsense and way beyond his area of expertise. There was, for instance, the case of the woman who had been stabbed to death. She'd also had sex. It was, Erdmann testified, rape by a stranger rather than sex with her husband. How did he know? The semen was very close to the opening of the vagina, indicating, Erdmann said, that the man ejaculated early - which could, he said, only be a consequence of the excitement of a rape.

(On cross-examination he was asked if he'd ever heard of premature ejaculation. His answer was that he didn't have that problem.)

Shortly after I left Texas, Erdmann got caught. He testified about having weighed a man's spleen after removingt it during the autopsy. Nope. Erdmann didn't know that the man had had a spleenectomy some years before. Why didn't he know? Because he'd never actually cut open the body. (Story here.)

You know, autopsies are hard work and unpleasant. Much easier just to find out what the desired testimony is and give it. Saves everyone so much trouble.

Erdmann's not alone in doing shoddy (or non-existent) autopsies. In fact, it's a virtual epidemic in Texas. (See here.) But it's elsewhere, too. There's Charles Smith of Ontario, who may have been more incompetent than dishonest. Not so Dr. Eupin Choi in Chicago who simply lied in his autopsy reports or Michael Stelter of Winnebago County, Wisconsin, lied on the witness stand. And it's not, of course, just pathologists. See here for an impressive, if incomplete list of some of the forensic "experts" who got caught.

All of which probably helps explain why criminal defense lawyers are jaded. And why we take a certain mildly guilty satisfaction from seeing some of their bad guys get burned.

So with thanks to Paul Kennedy for pointing it out, a moment of silent schadenfreud, please, in honor of Deetrice Wallace who just got sentenced to a year in prison for faking inspections of Intoxilyzers used by police in a number of districts in and around Houston. More than 1,200 DWI convictions will be set aside. According to Harris County (that's Houston, Texas folks) Assistant District Attorney Terese Buess

It's just a massive problem that is not going to go away.

She added,

It's a huge mess.

Ya think?

I'm just a criminal defense lawyer. Incompetent and dishonest government "experts" help me make a living. But I'll forgo some of that and just make a simple suggestion: Hire people with integrity rather than whores and true believers. When they tell the truth, whatever it is, everyone benefits.

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.

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

The Dead Innocent Guy

Among some (many? a few? one lady in Dubuque, Iowa?) abolitionists, I'm known for disliking claims of innocence.

Frankly, I'm never even sure what it means.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.

We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law.

Innocence, you see, is not as simple a thing as it sounds.

That's why the exoneration lists are so controversial. The Death Penalty Information Center maintains what you might think of as the master list of people exonerated from death row. The current total is 135. That's a useful number we abolitionists like to bandy about, but as retentionists point out, it's a list of the legally exonerated, not necessarily the factually innocent, the wrong guy, the we just flat out got it wrongs. As Ward Campbell points out in an over-the-top but not entirely wrong condemnation of the list, it can't fairly be taken as a who's who of the innocent condemned.

Many of the cases abolitionists like to tout, Mumia Abu Jamal is a prime example, simply don't prove the claim. I mean, he may not have done it. But he may. Here in Ohio, John Spirko spent a couple of decades on death row for a murder that, frankly, there's no credible evidence he committed. But the absence of evidence of guilt isn't the same as actual proof that he's the wrong guy.

I like, in this context, to talk about O.J. and the glove. (You know, the one that if it didn't fit you had to acquit.) Let's assume the cops planted it. Does that mean he didn't kill Nicole? Most of the time when the cops lie and make up evidence it's to make a case stronger against someone they believe (often correctly) is guilty. It's far less common - not unheard of, but less common - for them to fake evidence with the intent of convicting the innocent.

Finally, of course, there's the problem that when we put our eggs in the innocence basket, we risk a whole lot of cracked yolks.

Take Roger Coleman, please. He conned a whole lot of good, committed people into believing that if they could just test his DNA they'd get the proof of the dead innocent guy, you know the one Scalia says doesn't exist, the executed person who is incontestably innocent. The Commonwealth of Virginia fought for years to prevent the testing (which tells you all you need to know about how confident it was that the right guy had been killed). And then, well, turns out Coleman did it. As more than one Virginia capital lawyer said, Coleman gave innocence a bad name.

And yet we keep searching. The elusive incontestably dead innocent guy is a quest precisely because (a) we know dead innocent guys are out there and we have a pretty good idea of who at least some of them are; (b) when we find him, or her, we'll have the hard evidence of something that will sure look a lot like what Harry Blackmun called "simple murder"; (c) personalizing the dead innocent guy, not just "there's more than one out there," but "We killed that innocent man over there," will move people. As Josef Stalin said,

A single death is a tragedy. A million deaths is just a statistic.

The movement from statistic to tragedy may be the movement from retention to abolition. Indeed, it was the execution of particular and demonstrably innocent men that led to abolition in Michigan more than 150 years ago, to abolition in England far more recently.

We have another candidate.

Cameron Todd Willingham was executed by the good people of Texas in February 2004 for the arson murder of his three children. In December of that year, the Chicago Tribune published the result of its review of the case and concluded that there was no credible evidence the fire was, in fact, arson. It could as easily have been an accident. The Innocence Project was next. It hired a panel of arson experts and concluded too, in a report issued in 2006, that Willingham was probably innocent and called on Texas to investigate. Last year, Texas agreed to investigate. And now we have the results. Here's how the Chicago Tribune's article begins.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

It's not that incontestable case of the dead innocent guy. But it's getting close. At some point the weight of the likely mistakes starts to weigh on you.

So now what? What will Texas do? Will it concede that it killed a likely innocent man? Will he get a posthumous pardon? Or will the state say that all these experts, including the one it chose to review the case, are blowing smoke, bury the doubts, airbrush out the warts?

I'm sorry to say that the smart money is on the smoke and the airbrush.

Hat tip to Grits for Breakfast.

IT'S A MATCH IF I SAY IT IS

The always interesting Grits for Breakfast has this important new post on cognitive bias which is, in turn, inspired by this important article in Miller-McCune.com.

Oversimplifying almost to the point of being misleading, cognitive bias is the reason that when you know what you're looking for, you're likely to find it. It's a major issue in the hard and social sciences. As relevant here (and as Grits talks about it), it has serious dangers in crime labs doing fingerprint matching.

What happens, and what Grits discusses, is that when fingerprint examiners have case information saying, for instance, that the suspect is in custody, they're more likely to find that the latent print is the suspect's. Similarly, they're more likely to find matches when they think they're solving a terrorism case than a simple robbery. That's dangerous and frightening given juror's belief in the talismanic power of fingerprints.

The easy remedy for much of the cognitive bias in crime lab work is simply to remove crime labs from police departments and insure that the people examining the evidence don't have information about the context of what they're looking for. Detectives and investigators need that. Lab folks mostly don't.

But it's more than just cognitive bias and it's more than just fingerprints. All the forensic experts who testify that can make visual matches are telling stretchers, whether they know it or not. Fingerprints are especially problematic because we've been hearing for over a century that they're the gold standard, the infallible forensic, and the examiners believe it. So a typical fingerprint testimony, spoken in complete if altogether inaccurate honesty, and I'm not not making this up,

There is no error rate. It's 100 percent accurate. I compare the prints and when I'm certain it must be this person and can't be anyone else in the world, then it is.

These folks claim to be scientists, but they're really trained lookers who've never had their work validated in any rigorous way because there is no rigorous validation for what they do.

The truth is that we have no idea whether fingerprints are unique, and no idea how to tell that this print (let alone this fuzzy, smudged, damaged, partial, latent print) and that print over there are a perfect match. How much identity in the prints do you need? Nobody knows, and the little testing that's been done doesn't suggest that the results should be trusted. (See, for instance, this article in the New Yorker).

And what we don't know and shouldn't trust about fingerprints is the tip of that iceberg. Tire tracks, ballistics, fiber comparison, it's all nonsense. That's not to say it's all wrong, just that there's no telling when it's right and when it isn't. One study of bite mark analysis showed that the forensic odontologists who tried to make matches were wrong more than half the time. So if they say it's you, it's probably not. (Just ask Ray Krone, an innocent man who spent a number of years on death row in Arizona because of a faulty bite mark match.)

And what's true, by the way, of trained lookers is also true for those working with the harder science of DNA analysis. The science of DNA is perfectly sound. Interpretation of the scientific results, the analysis, is something else.

The recent exhaustive study by the National Research Council, Strengthening Forensic Science In The United States: A Path Forward goes a long way toward identifying the problem and offering some ideas for fixes. But the first step is probably the hardest: Convincing the public that CSI (and Quincy, to those of us of a certain age) is nonsense.