Wednesday, December 18, 2013

HOW IS A FEDERAL JUDGE LIKE A TALIBAN WARLORD?


Steven D. Levitt in his books Feakonomics and Super Freakonomics asks and answers some provocative questions. For example: What school teachers and sumo wrestlers have in common? How is a streetwalker like a department store Santa? What do Al Gore and Mount Pinatubo have in common? He does this in a spirit of scholarly detachment, without intent to disparage anyone. In the spirit of Levitt’s Feakonomics I ask “How is a Federal Judge like a Taliban warlord?”

Back before we became entangled in Afghanistan the Taliban ran the country. Being easily offended by religious icons, the Taliban decided to destroy some historic pieces of art—gigantic statues of Buddha carved into a mountain overlooking the Bamyan Valley. Despite international pressure to relent and save these priceless works of art, the Taliban dynamited the statues. [See After 1,700 years, Buddhas fall to Taliban dynamite]. I’m no Buddhist, but I was appalled at the destruction of these monumental pieces of art.
Afghanistan Statua di Budda 1.jpg
One of the Bamyan Buddhas in 1976*
 
Fast forward to the present, and we have a Federal Judge in California who displays a Taliban attitude toward another treasured piece of art—a gigantic cross on the top of Mount Soledad near San Diego. He has ordered that the cross be taken down. [See Judge says giant cross must come down from San Diego mountain]. Of course, the judge himself may not have a Taliban attitude, he may just feel that legal precedent constrains him to accede to the wishes of a group of plaintiffs who have a Taliban attitude toward religious iconography. After all, the government is not in the business of financing the production of religious-themed art.
The Mount Soledad Cross*

Not so fast. If the judge had done his research, he would have found well-established precedent for the government not only condoning, but actually financing religious themed art.  Back in the eighties the federally funded National Endowment for the Arts actually contributed money toward the production of “Piss Christ,” a picture of a crucifix submerged in the artist’s urine.  [See WH Silent Over Demands to Denounce ‘Piss Christ’ Artwork]. This offensive piece of “art” is still making the rounds and no Federal Judge has seen fit to enter an order for its destruction.

Do we as Americans have our collective heads stuck so far up a warm, dark place that we condemn pious religious imagery while celebrating impious religious imagery? Apparently so. The Godless old Soviet Union had a healthier attitude toward religious iconography than we do. Remember when the Reagans visited the Gorbachevs and the two first ladies had a dust-up over Eastern Orthodox iconography that the USSR celebrated as great art while ignoring its religious message? [See Nancy, Raisa in "Mexican standoff"].Perhaps we should ask another question: “Why do Russian atheists have a more tolerant attitude toward religious iconography than American atheists?”
 
File:Execution of John the Baptist icon02.jpg
The Execution of John the Baptist, an example of Russian Orthodox Iconography*
 
Destroying artwork of any type is boorish, and it is doubly boorish when it is done in the name of religious intolerance. I am no Catholic, but I was offended when I visited the Church of St. Peter and St. Paul in Bath, England (aka Bath Abbey). Two beautiful statues, one of St. Peter and one of St. Paul flank the doors of the main entrance to the church. At least they would be beautiful if St. Peter had a face. Some early modern Protestant smashed St. Peter’s face. If memory serves me (and it often doesn’t) Our guide told us that St. Peter lost his face to a Puritan iconoclast from the time of Oliver Cromwell.
 

The Entrance to Bath Abbey
(If you look closely at the figure on the left, you
will see that someone has made a crude
attempt to carve a new face for St. Peter
in the wreckage of the old one)
 
I’m not suggesting that the Mount Soledad Cross is artwork of the quality of a giant stone Buddha carved into a mountainside or a life size statue of St. Paul carved into the entrance of a church, but it is artwork nonetheless, and the quality of that cross exceeds the quality of “Piss Christ” by a greater degree of magnitude than the quality of the stone Buddha exceeds the Mount Soledad Cross. If our Federal Government can pay to have a crucifix bearing the figure of Jesus dipped in urine and called art, it can tolerate a stone cross that was already on a piece of land when the government acquired it. If, however, we must remove the cross, then I say for the sake of consistency we must also destroy “Piss Jesus,” which was paid for by our Federal Government. I’ll donate the gasoline and matches for the job.

* Courtesy of Wikimedia Commons.

Wednesday, December 11, 2013

MINNESOTA COUNTY ATTORNEYS ASSOCIATION

Last Friday I spoke to the Minnesota County Attorneys Association. We flew into Minneapolis on Thursday and stayed through Monday. It was 81 degrees F when we left Lake City and -11 when we arrived at the airport in Minneapolis. As a lifelong Floridian who has seen more snow on faulty picture tubes than on the ground, I was not prepared for the drop in temperature. I saw a number of prosecutor friends I hadn't seen since they closed down the NDAA National Advocacy Center back in the early 2000's. The Center, which was subsidized by the Federal Government, served for many years as an elite training school for prosecutors, but it fell victim to budget cuts several years ago. I served as faculty there on several occasions and have nothing but fond memories of the place. I understand that there are plans to open a reincarnation of the Center in Utah, and I wish them the best of luck with the endeavor.


The View from Our Hotel Room
 
I was the last speaker on the MCAA agenda, and I was afraid that I would be speaking to an empty room as everyone checked out of the hotel and headed for home. I was pleasantly surprised to see a full house of approximately 200. I spoke for almost two hours on the investigation and prosecution of Ted Bundy, and the lecture seemed to be well-received. The main topic of the talk was the problems a prosecutor confronts in handling a high-profile serial murder case.

I was pleased to hear several prosecutors praise Cross-Examination Handbook: Persuasion, Strategies, and Techniques, which I co-authored with Ron Clark and William Bailey. The book was a labor of love, and I am gratified that practitioners find it useful for planning and conducting cross-examinations.

Lane (my wife) and I didn't get out much in the sub-zero weather, but we did get an opportunity to visit the Mall of America, a shopping center with an aquarium in the basement, an amusement park on the ground floor, and a multiplex cinema on the fourth floor. It also had a huge Lego store with the biggest Lego model I have ever seen (a gigantic robot). Except for the bitter cold, it was a pleasant trip.

Wednesday, December 4, 2013

Cross-Examination Blog: SUICIDAL REDIRECT EXAMINATION

I have said in an earlier post that I contribute to a blog on cross-examination. Here's my latest post on that blog.

Cross-Examination Blog: SUICIDAL REDIRECT EXAMINATION: There’s an old saying that cross-examination is more often suicidal than homicidal. The saying refers to the fact that many lawyers do

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE CROSS-EXAMINER

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE CROSS-EXAMINER: The centerpiece of the legend of the Almanac Trial is Lincoln’s cross-examination of the eyewitness to the killing. Was he really a good ...

Friday, November 22, 2013

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE GRAPPLER

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE GRAPPLER: In previous posts I have mentioned Lincoln's skill as a wrestler. He is reputed to have contested over 300 bouts, losing only one . This...

Thursday, November 21, 2013

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE INVENTOR

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE INVENTOR: A Mississippi River Flatboat (From Abraham Lincoln: His Youth and Early Manhood by Noah Brooks Lincoln began his transformation fr...

Tuesday, November 19, 2013

Friday, November 15, 2013

THE RISKS ASSOCIATED WITH BEING A PROSECUTOR, PART 2


Back in the mid 1980’s, I got assigned to a case against a drug smuggling ring headquartered in Chicago. The interesting thing about this ring was that approximately half of the members of the ring were either current or former Chicago police officers. The charges included Racketeering, Conspiracy to Murder, Kidnapping, and Murder. Two of the men we indicted were reputed to be organized crime hit men. You can read a more in-depth account of the case in my blog post titled THE WRONG MAN MURDER.
The nice thing about working on the case was that I wasn’t the lead prosecutor. I had been called in to help out on the case when the defense team filed somewhere in the neighborhood of 200 pretrial motions. Although I didn’t like pretrial motion practice, I was pretty good at it, so I got assigned.

After the dust had settled and the smoke had cleared from hearing all the pretrial motions, I stayed on to assist in the trial of the case. This was probably the most complex case I ever tried, which was probably another reason I was kept on after the motion hearings. I was also pretty good at organizing vast quantities of evidence. The office was just entering the computer age, and our system came with a very primitive database program. I used the database program to work out a system for organizing and keeping track of all our witnesses and evidentiary exhibits. It was fun, and I got totally hooked on computerizing trial preparation.

The trial team was a reunion of the Ted Bundy trial team. Len Register was the lead prosecutor, Jerry Blair assumed the role of “player-coach,” and I was the water boy. We tried the case on change of venue to Tallahassee Florida, and I rented a room in a fleabag motel hoping to economize on travel expenses. When we had tried Ted Bundy a few years before, I had run up a whopping credit card bill which took a good long while to pay off, and I wasn’t planning on doing that again.

Jerry and Len seemed awfully nervous about personal safety. They both carried concealed weapons which they had to turn in to courthouse security every morning and retrieve every afternoon. FDLE had formed a witness protection team which acted as bodyguards for our important witnesses, some of whom actually testified while wearing bullet proof vests.  Initially I thought this was a silly display of paranoia, and I took great pleasure in kidding Jerry and Len about their timidity.

Then some relatives of one of the reputed hit men came to town in a black Cadillac and started attending the trial. The Sheriff’s Office tactical unit kept tabs on them while they were in town. They did some strange things, but nothing you could really call criminal. They got blamed for one thing that happened, but there was really no proof they were responsible. Somebody booby trapped the bomb squad which swept our courtroom for explosive devices every morning.  One morning while they were in the courtroom sweeping for bombs, somebody was taking the lugnuts off of two of the tires to their van. After they got through sweeping the courtroom, they went back to the van, got in, and drove off. They hadn’t gone very far before the wheels fell off. I thought it was funny.

I started losing my sense of humor one night about two in the morning when I got a call on my hotel phone. I answered the phone, but my caller did not speak. I said “Hello” several times but got no response. It wasn’t a hang up call, my caller stayed on the line unspeaking. I hung up the phone and went to the manager’s office. The motel was so primitive that there was a little switchboard in the manager’s office. Callers would call the main number and ask for a room, and the manager would connect the caller to the requested room. I wanted to know who the blazes had called, and the night manager ought to know.

He didn’t. Somebody had just called and asked to be put through to my room, and the manager had obliged. I told the manager I needed to change rooms, and I needed to change rooms immediately. He put me up in a room at the other end of the motel from the room I had rented. I slept there that night, and moved my luggage into the room the next day. I continued to park my car in front of my original room.

Then somebody scrawled a death threat on the window of one of the juror’s hotel room. Then one night somebody got to the judge’s car, lifted the hood, and unhooked one pole of the battery. He was seen and fled on foot before he could do anything else. Of course, the theory law enforcement liked was that he was trying to hook a bomb to the judge’s car. The next weekend I drove back to Lake City and retrieved a handgun.

As I said, the Sheriff’s Office tactical unit was keeping track of the black Cadillac as it tooled about town, but sometimes they lost it. One of those nights when they lost the Cadillac I was suffering from insomnia. I decided what I needed was a nice Diet Coke, so I stepped out of my room to walk to the one drink machine in the motel. It was then that I saw a black Cadillac pulling into the motel parking lot. I faded into the shrubbery and watched. The Cadillac turned to drive in the direction of my car, which was still parked in front of my old motel room. When it turned, I could see the license plate—an Illinois tag. The Cadillac slowed down in front of my car, made a U-turn, and drove back out of the parking lot. I got out of the bushes, went to a phone, and called the tactical unit. They posted a highly visible guard on my room for the rest of the night, and I moved out the next morning.

I moved to the motel that was being used by the witness protection team and got the room next door to theirs. It was much more expensive, but I slept much better in my new room. Finally the trial ended, and I can’t say that I was unhappy to be through with it. I believe that two of the defendants were among the most dangerous men I ever prosecuted, and I have prosecuted many dangerous men.    

CROSS-EXAMINATION BLOG: LEADING VERSUS LOADED

Cross-Examination Blog: LEADING VERSUS LOADED: According to the state’s factual theory in the Lindbergh Kidnapping Case, the kidnapper used a homemade ladder to climb into the child’s sec...

Wednesday, November 13, 2013

WHAT DOES IT TAKE TO BE A GOOD PROSECUTOR?

As the current semester draws to a close, I am preparing for the next. While going through some of my old papers I came across a quote that I used back in 2006 during my first semester teaching the Prosecution Clinic. I felt it summed up what a prosecutor is supposed to do in a courtroom better than anything else I had ever read.

The author was a man named Richard Whately, who served as the Bishop of Dublin for the Church of Ireland back in the mid 1800's. Whately was a true polymath, who was recognized as a expert in the fields of rhetoric, logic, economics, and theology. He wrote extensively on all these subjects, and his books are still available at Amazon and Barnes & Noble.

In his 1828 work, "The Elements of Rhetoric," he described the task of the rhetorician as follows:

"Keep always on the side of truth; and, avoiding all sophistry or double dealing, aim only at setting forth that truth as strongly as possible, without any effort to gain applause for your own abilities."

Ironically, he said this admonition did not apply to lawyers, whom he evidently thought were a bunch of gangsters. If it doesn't apply to lawyers, it should. And it should apply doubly to anyone who wants to be a good prosecutor.

Wednesday, November 6, 2013

YAHOO NEWS IS STUNNED BY YOUTH'S DISPLAY OF RELIGIOUS PRINCIPLES

Yahoo News has just reported what it calls "one of the strangest cases of purported religious beliefs intersecting with athletic performance." A young girl competing in a cross-country race became upset because she had been assigned the number 666 to wear. She asked for, and was denied, permission to run with another number. She refused to run with the number, and forfeited a chance to compete in the Kentucky state championships, a goal she had been working toward for three years. The article said that the girl's decision "stunned" everyone at the meet except her coach. You can read the story by following this hyperlink.

Here's what I think is strange about the story:

1. That anyone would think it was strange for a person to refuse to wear a symbol which was deeply offensive to that person's religious beliefs.

2. That anyone would be "stunned" because someone valued their religious beliefs above success in an athletic competition.

3. That the author of the article would characterize the girl's religious belief as "purported."

4. That the authorities who denied her request to change numbers would disingenuously claim that she never said she wanted to change numbers because of her religious beliefs.

I salute Cody Thacker. She stood up for what she believed in and willingly suffered the consequences. Instead of being ridiculed, she should be admired.

It has not been that long ago that instead of being "stunned" by "strange" refusals to violate "purported religious beliefs," we celebrated them. A similar incident occurred in the 1924 Olympics, when the British sprinter Eric Liddel refused to run the 100 meter dash because it was contested on Sunday. He refused in the face of the strong insistence of the British Olympic Committee and the Prince of Wales. To make a long story short, Liddel became admired as a hero and was mourned by an entire nation when he died during World War II. The 1981 movie Chariots of Fire told his story, and the story of his Jewish teammate, Harold Abrahams, who won gold when he ran in Liddel's place. The movie grossed $58,972,904 in the United States--and a dollar went much farther back in those days. 

Why, in 1981, did the American media celebrate Liddel as a hero when today it wonders at Cody Thacker's "odd" behavior? The last time I checked, the First Amendment still guaranteed freedom of religion, not freedom from religion. To question a young girl's principled stand based on her religious beliefs is reprehensible.

Saturday, November 2, 2013

THE RISKS ASSOCATED WITH BEING A PROSECUTOR


There is a certain amount of risk associated with any calling, including the calling to be a prosecutor. I never worried that much about the risk associated with being a prosecutor, but occasionally I was confronted by the threat of violence. There were a number of death threats made over the years, but I never paid much attention to them and nothing came of them. I do recall one case I tried where a member of the audience came to me during a break and warned me that the defendant’s family was talking about accosting me and beating me up after the trial was over. I wasn’t particularly frightened by the warning, but I decided to take some precautions. After the trial was over and the defendant was on his way to prison, I went back to my office and got my State Attorney issued .38 revolver out of my desk drawer. I dropped it in my pocket and drove home without incident feeling safe and secure. When I got home, I decided to unload the revolver before taking it into the house I shared with my wife and three children. I pulled the revolver out of my pocket, popped the cylinder open, and discovered that the gun was empty.

I once tried another case against two ruffians who had sexually assaulted another man. The case was very contentious, and when I cross examined the defendants I was particularly rough on them. In final argument I raked them over the coals pretty well, and by the time the jury returned the verdict finding them guilty, I could tell that they didn’t like me very much. To my surprise, the judge released the two on their own recognizance pending sentencing. I prosecuted in a rural circuit, and the courthouses were widely separated from each other. I had a trip of some thirty miles down lonely country roads to get home. I drove those thirty miles with the defendants’ pickup truck on my bumper almost the entire distance. I didn’t have my revolver that day, but I did have an axehandle that I habitually carried in my car. I must admit that I was just a little nervous during the trip.

On another occasion I was leaving the courtroom after getting a first degree murder verdict. I had been assisted in the trial by ASA Dana Brady, and we were walking out together. When we got into the hall, I looked toward the elevator at the end of the hall and saw a burly young man standing in front of it with a group of people. He yelled something inarticulate and began down the hall towards Dana and me. The people he was with tackled him and pulled him back. Just about that time the elevator door opened and they pulled him into the elevator. “I wonder what that was all about,” I casually remarked. Dana, who had gone to school with the defendant and knew his family, replied “That was the defendant’s brother, and he was attacking you.”

Then there was the time that I was escorting a victim out of the courthouse when she was attacked by the person she had complained against. The victim ran out the front door of the courthouse and across the park, and I never saw her again. There were no officers around, so I grabbed the assailant and got her stopped. She said something to the effect of “Let me go, I’m gonna put some knots on her head!” That was when I noticed she had what looked like an enormous butcher knife in her hand. I let the woman go, but stood in front of her to block her exit from the courthouse and told her to give me the knife. It seemed like an eternity as we confronted each other on the courthouse steps and I tried to get her to put down the knife. The courthouse was usually crawling with law enforcement officers, but that particular day there were none anywhere. Eventually the woman told me, “Well, if you’re going to carry me to jail, go ahead and do it.” As a Florida Assistant State Attorney, the law recognized me as a law enforcement officer but I was a law enforcement officer without arrest power. I decided that would be no problem because the woman had consented to the arrest, so I told her to come with me. She threw down the knife and I marched her into the Chief Deputy Sheriff’s office, explained to the Chief Deputy that this woman needed to be carried to jail, and if he would watch her a few minutes, I’d go get the necessary paperwork. I went to my office, typed up an arrest warrant, and took it to the judge. When I got it signed, I took the warrant directly to the Chief Deputy and told him to arrest her. Having made my “arrest,” I went to where she had thrown the knife to collect it as evidence. You can imagine my relief when I discovered that she only had a red-handled file and not a knife.

I mentioned that as an Assistant State Attorney, I was recognized by Florida law as a law enforcement officer. That status figured prominently in this next story. I was trying a bodybuilder on misdemeanor indecency charges and had just got a conviction. As I stepped to stand before the bench and ask the judge to impose sentence, the defendant jumped up and suckerpunched me. He loosened a couple of teeth and either knocked me down or tackled me to the floor, I don’t know which. He assumed what the UFC would call the full mount position and began to engage in the MMA maneuver known as “ground and pound.” I fishhooked him with one hand and threw punches back at him with the other, but you can’t throw a very heavy punch lying flat on your back. If I’d had any sense, I would have covered up and waited on the bailiffs to subdue him. By the time they got him subdued and I regained my feet, I had changed my mind about recommending probation. The judge gave him 18 months in the county jail, and when that sentence was over he went to prison for the felony of battery on a law enforcement officer.

I had meant to conclude this post with an account of the one time that I really felt that I was in danger, but the story of that case is a little too long. In my next post I’ll talk about the Wrong Man Murder, why I believed that I was being stalked by gangsters from Chicago, and what I did to neutralize the threat.

Friday, November 1, 2013

THE WRONG MAN MURDER

Yesterday I ran across an interesting blog post about a case I helped to try in 1984. It was variously known as the Austin Gay Murder Case, the Domberg Case, and the Wrong Man Murder. The post was written by a lady who had served on the jury, and the experience obviously had a profound effect on her. I found her comments quite interesting. It's a six part blog. Here are hyperlinks to each of the parts:

Before You Judge, Part 1;

Before You Judge, Part 2;

Before You Judge, Part 3;

Before You Judge, Part 4;

Before You Judge, Part 5;

Before You Judge, Part 6.

The lady made some pretty shrewd observations about the trial and its participants, and gave me a belated view into the jury room in the case which I'll always remember as "The Case We Lost But Nobody Noticed."

Our objective in this case was to convict the defendants of murder, but we knew that we had a weak case. We decided to try to prop the case up with additional charges which were easier to prove: Racketeering, Kidnapping; Conspiracy to Murder.

Our case theory went something like this: The Domberg Gang hired Joe Sallas to go to Florida and kill an Agricultural Inspector (Leonard Pease). While Sallas was in Florida, another Agricultural Inspector (Austin Gay) was murdered. Because Sallas was the only person we knew of who had gone to Florida to kill an Agricultural Inspector, he must be the one who killed Austin Gay.

I believe that we severely weakened our case because we indicted one man too many. Here's how it happened:

According to the gang members whom we "flipped" to testify, Sallas recruited a friend who had just gotten out of prison in Oklahoma to go to Florida and help him. The helper was a former paratrooper and the crime he was serving time for was murder. The only man who had just gotten out of prison in Oklahoma on a murder charge was Billy Jim Cherry, and Cherry was a former paratrooper to boot. Cherry appeared in a lineup and took a polygraph. He was identified in the lineup and he flunked the polygraph. We had enough to indict Cherry, but just barely. Of course, the polygraph results weren't admissible in court, and our eyewitness identification was made by the least credible of our "flipped" witnesses. Viewing the case with 20/20 hindsight, it is easy to say we should not have indicted Cherry.

To add to our woes, our star witness died of a heart attack just before the trial began. We quickly plea bargained with two more members of the Domberg Gang and "flipped" them as well. It wasn't enough.

Of the four men we eventually tried, Cherry was acquitted of all charges; Sallas was acquitted of Murder but convicted of Conspiracy to Murder; Ed McCabe was acquitted of Murder but convicted of Racketeering and Conspiracy to Murder; and the kingpin, Robert David Domberg was acquitted of Murder but convicted of Racketeering, Kidnapping, and Conspiracy to Murder. As far as I was concerned, we had lost the case.

When sentencing time came, each man was sentenced to the maximum sentence allowed by law. Sallas got 30 years and Domberg got 90, with McCabe getting a sentence somewhere in the middle. After it was all over, we were universally congratulated for a job well done. Apparently nobody, least of all the defendants, noticed that we had lost the case.

The Domberg Case exemplifies a peculiar type of case that prosecutors sometimes confront--The Case That Has To Be Tried. This type of case is one where:

1. You are satisfied that the defendant(s) are guilty of a horrific crime.
2. You have marginal evidence which is not going to get any better.
3. You stand a fair chance of winning, but a bigger chance of losing.
4. If you are going to have any hope of doing justice, you are going to have to try the case.

Over the years I've tried a number of homicide cases (and other serious cases) that "had to be tried." I won some, and I lost some. I don't regret trying any of them.

A few parting thoughts about cases that have to be tried: If you have any reasonable doubt about the defendant's guilt, you do not file charges. If your chances of winning are slim to none, you do not file charges. You only file when you firmly believe the defendant to be guilty and firmly believe that you have a chance to convict. Public outcry about the case, no matter how loud it may be, must not figure into the decision making process.




ABRAHAM LINCOLN'S ALMANAC TRIAL: THE ALMANAC TRIAL INDICTMENT

ABRAHAM LINCOLN'S ALMANAC TRIAL: THE ALMANAC TRIAL INDICTMENT: Indictment forms have changed dramatically over the years. The Almanac Trial indictment was written by hand and was worded almost identicall...

Wednesday, October 23, 2013

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN'S AUTOBIOGRAPHIES

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Tuesday, October 22, 2013

LAST MEALS FOR CONDEMNED PRISONERS

I get calls from the media on all sorts of legal issues relating to criminal law, and I'm always glad to try to help promote a better understanding of the criminal justice system. When I was in active practice as an assistant state attorney, I dreaded calls from the media. Some people are very "mediagenic," and some are not. It seemed like I always managed to come off looking like a dunce when I spoke to the media. I suspected that there were certain members of the media who enjoyed making me look like a dunce, but that's another story.

The other day I got a call from the Orlando Sentinel asking about the custom of last meals for condemned prisoners.  I made some remarks, and they found their way into print. You can read the full text of the article at "The 'last meal': Part of death row lore."  Nobody really knows where the custom of the last meal comes from, but the article reports the various conjectures about how it came to be. One conjecture is that the custom comes from the Bible passages Isaiah 22:13 and 1Corinthians 15:32. When read in isolation, the verses seem to support the custom, but when read in context it becomes clear that the authors of those two passages were definitely not thinking about executions.

Although there is some sentiment that the last meal is unnecessary and unseemly, I think it is an important custom if kept within reason. Murderers, because they often act from malice, seldom dispatch their victims in a humane fashion. When we inflict the death penalty, we take great pains to be as humane as possible. In order to show that we are being humane, we take care to inflict the death penalty without malice. The last meal is a part of the process which demonstrates that lack of malice.

Wednesday, October 16, 2013

THE "HISTORIC" BIPARTISAN AGREEMENT

Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell just announced a "historic bipartisan agreement" to keep the country running until January 15, 2014. Break out the champagne! Shoot off fireworks! The country is saved! Until January 15, 2014. That's three months. Am I missing something here? Our government is rupturing at the seams and an agreement to slap some Scotch tape on it is a historic agreement?

Right about January 2, 2014, we're going to be right back where we are now, and Congress and the President will wrangle over the impending disaster until, on January 13, 2014, they all agree to slap another piece of tape on the problem. Who knows, if we're lucky the next piece of tape might even hold us together for six months.

They say in a democracy you get the government you deserve. I sincerely hope and pray that we don't actually deserve the mess we've had up on Capital Hill the past few years. Nobody wants to settle anything. They just want to stand around in a circle and point fingers at each other trying to blame someone else. There's enough blame for everyone. Who do I think is responsible? Democrats, Republicans, the President, and anyone else who subscribes to the whole Washington culture of confrontation. Everybody on every side portrays everyone on the other side as evil villains. Maybe they're all right. Maybe the whole lot of them are villains. The only other explanation I can come up with that fits the facts is that they're all idiots.

 

SHERLOCK versus ELEMENTARY

As a child, I found some of my grandmother's furniture to be fascinating. She had a number of barrister book cases filled with books. I spent many hours examining and reading the books in my grandmother's library. I actually wore some of her books out by reading and re-reading them. One set of books that I almost demolished was a two volume collection of Arthur Conan Doyle's Sherlock Holmes stories. Thus began a lifelong fascination with Doyle's great detective. I have read and re-read all of Doyle's stories multiple times; I have watched many (but not all) of the Sherlock Holmes movies and television shows; and I have listened to every Sherlock Holmes radio play I could get my hands on.

Although I found some of the television and movie portrayals of the great detective to be unwatchable, I thoroughly enjoyed the Basil Rathbone/Nigel Bruce movies. Rathbone became the cinematic Holmes against whom all subsequent Holmeses are measured. The latest movie series with Robert Downey, Jr., is quite good, although not quite what Conan Doyle had in mind. The television series with Jeremy Brett was good, but I found Brett to be a little too heavy to be a convincing Sherlock Holmes. Many have played Holmes on radio, but none better than Clive Merrison in the BBC series.

Now we have two competing television series about the great detective--Elementary on CBS and Sherlock on BBC. Although they both bring Holmes to the twenty first century, they give very different portrayals. Elementary's Holmes (Johnny Lee Miller) is a recovering drug addict who lives and works in New York City, while Sherlock's Holmes (Benedict Cumberbatch) is a self-proclaimed "high functioning sociopath" living at the venerable address of 221B Baker Street in London.

Cumberbatch's Holmes seems to me to be closer to the original than Miller's. For example, Cumberbatch's Holmes is ridiculed by his enemies as a virgin, while Miller's Holmes seems to be quite promiscuous. Cumberbatch may be a little too close to the original Holmes; he sometimes comes off as a caricature of the original. I like both Cumberbatch and Miller as Holmes.

While both Cumberbatch and Miller are reasonable facsmiles of the original Holmes, Elementary's Watson is nothing like the original. First, he's a she (Lucy Liu). Second, Elementary's Watson is not a disabled veteran with PTSD. She's a surgeon who lost her nerve when she lost a patient on the operating table. Despite the fact that she's nothing like the original Watson, Liu carries off the part of Watson quite well. She's no dunce, and she becomes an indispensable colleague of Holmes. Sherlock's Watson (Martin Freeman) appears to me to be the second coming of the original Watson. He's a combat wounded veteran of the war in Afghanistan, and he's quite capable of handling himself in a scuffle. He's nothing like the bumbling Watson created by Nigel Bruce. Although I liked Bruce as Watson, I prefer the more capable Watsons portrayed by Liu and Freeman.

When we come to Irene Adler, we stray far afield from the original character. Sherlock's Irene (Lara Pulver) is a thoroughgoing scoundrel, somewhat on the same plane as the Irene Adler from Robert Downey's Holmes movies. The original Irene was a resourceful woman who lived somewhat outside the law, but she was not a villain. Elementary's Irene (Natalie Dormer) is a far more complex  character than either the original Irene or Sherlock's Irene. As with the Irene Adler from Robert Downey's Holmes movies, both Sherlock's and Elementary's Irene Adlers have a connection to Holmes's archnemesis, Moriarty. I think I prefer Sherlock's Irene Adler to Elementary's.

The original Moriarty was a professor of mathematics and the Napoleon of crime. Neither of the new Moriarties are professors, and aside from the fact that they are both brilliant the sole resemblance they have to the original Moriarty is their thoroughgoing criminality. Sherlock's Moriarty is as nutty as a fruitcake, while Elementary's Moriarty seems to be a more interesting, complex character. I was glad to see the original Moriarty go over the Reichenbach Falls, and I impatiently awaited the demise of Sherlock's Moriarty. I didn't like the character in the original stories, and I haven't liked him in any of his subsequent reincarnations--until Elementary. When offstage Elementary's Moriarty was the embodiment of evil, but when onstage was someone for whom you could feel sympathy. I didn't want to see Elementary's Moriarty die.

Both Elementary and Sherlock thoroughly reworked Mycroft Holmes, Sherlock's older and smarter (and heavier) brother. In Elementary, he is a skinny restaurant owner. Sherlock's Mycroft, although he is also thin, is much closer to the original. I liked Sherlock's Mycroft.

Both series abound with sly allusions to the original stories by Doyle, and it is fun picking them out. I do believe, though that Elementary far surpasses Sherlock in the area of plotting. The story line for the first two seasons of Sherlock veered into the surreal, with some of the characters, Moriarty in particular, engaging in irrational behavior. I'm not going to say that Elementary's plots were more realistic, but they did seem to be less unrealistic and the characters behaved rationally for the bizarre situations they found themselves in.

In the final analysis, both shows are entertaining and very watchable. As the saying goes, "Though he might be more humble, there's no police like Holmes."

Monday, October 14, 2013

BIG BUSINESS AND THE ROMAN LATIFUNDIA

When I was a senior in college, one of my courses required me to do a research paper on guerrilla warfare. Being a lover of ancient history, I decided to do my paper on a little known guerrilla war waged against Rome by the Numidian king, Jugurtha. The war lasted almost a decade, and the citizens of Rome became very weary of such a lengthy conflict against an opponent who posed little threat to the survival of the Roman state. Up until the time of the Jugurthine War, Rome raised its armies by means of a draft levied against property owners. They drafted only property owners because the soldiers were expected to supply their own equipment. The war became so unpopular that the Roman general Caius Marius began enlisting volunteers from the urban poor and providing them with equipment. This was the death knell for the draft, and soon all Roman soldiers were volunteers. Because of this change  in recruitment, the Republic slipped into a series of civil wars and  military dictators which culminated in the establishment of the Empire. Draftees owed their loyalty to the state, but volunteers owed their loyalty to the general who recruited them.

 
 
 
JUGURTHA

I wrote my paper in 1970, at the height of popular opposition to the Vietnam War. Seeing the parallel between the Jugurthine War and Vietnam, I predicted that the draft would be abolished and that the US would become vulnerable to military dictatorship. I was right about the draft, but wrong about military dictatorship. There were two other factors which contributed to the death of the Republic which were not present back in the 1970's--a gridlocked government and the latifundia (gigantic farms which pauperized the yeoman farmers who were the backbone of the Roman Republic).

 
 

THE SENATE OF THE ROMAN REPUBLIC

As I observed in my post entitled "The Tragedy of the Commons," we now have governmental gridlock on a par with that existing during the decline of the Roman Republic. Although the family farm is becoming a thing of the past as agribusiness becomes larger and larger, we cannot compare big agribusiness to the latifundia. We ceased being an agrarian society in the Nineteenth Century.

We do, however, have a modern analog for the latifundia--big corporations. The mom and pop businesses which were so prevalent in mid-Twentieth Century America are dying out as big business drives more and more of them out of business. The latifundia were powered by chattel slaves; big business is powered by wage slaves. Slave owners had no concern for the welfare of the slaves, and (it appears to me) corporate America has little concern for its wage slaves. Of course, modern day big business doesn't physically mistreat, torture, or kill their workers--they just lay them off.

I don't think we're going to wind up being ruled by a military junta like the Second Triumvirate which finally destroyed the Roman Republic, but I do think that there is a real potential for something to happen to us very much like what happened to the Roman Republic. The Republic went through a turbulent time which ended with its quasi-democratic government becoming a dictatorship which looked like the old form of government but was nothing like it. We may well have begun to enter a turbulent time which will culminate in our government becoming something with only the outward appearance of democracy.

 

Sunday, October 6, 2013

THE LINDBERGH KIDNAPPING CONSPIRACY THEORIES


I subscribe to a web group devoted to the Lindbergh Kidnapping Case. Eighty years after the crime, people are still debating the guilt or innocence of Bruno Hauptmann and floating theories that others were involved in the kidnapping. When I first began delving into the case, I ran across all sorts of theories explaining why Hauptmann was innocent and why someone else was responsible for the kidnapping. Here lately it seems that the fashionable theories posit that Hauptmann had an accomplice or accomplices. A theory that Hauptmann had accomplices has more prior probability than a theory of Hauptmann’s innocence. Let us save discussion of this second theory until we have investigated the first.

We begin any investigation of the Lindbergh Kidnapping Case with the irrefutable fact that Hauptmann was duly convicted by a jury and that the conviction held up on appeal. In the law, this fact gives rise to a heavy presumption that Hauptmann was in fact guilty and places the burden of proof squarely on proponents of Hauptmann’s innocence. In order to carry the burden of proof that Hauptmann was innocent, we must invalidate the conviction, and in order to do that we must refute the evidence presented at trial. To refute the evidence presented at trial, we must (1) completely undermine it, and (2) offer compelling evidence of Hauptmann’s innocence.

There are two ways to present compelling evidence of Hauptmann’s innocence. (1) Show that he could not possibly have committed the crime, or (2) prove someone else committed the crime. We have an uphill battle doing this because the defense failed at both of these efforts during the trial. An after-the-fact attempt to prove Hauptmann could not possibly have committed the crime is a pretty tall order. The best shot at carrying this theory came during the trial, and the defense missed. A more feasible way to exonerate Hauptmann is to prove someone else committed the crime.

In order to prove someone else committed the crime we must (1) identify a candidate and (2) Offer compelling evidence that our candidate is the culprit.

We can outline our task in this way:

[1] Completely undermine the evidence of Hauptmann’s guilt; and

[2] Offer compelling evidence of Hauptmann’s innocence by

[a] Naming a new candidate for perpetrator, and

[b] Offering compelling evidence that our candidate committed the crime.

Most of the Hauptmann-was-innocent theories employ three strategies to achieve the first step. They engage in Kripkean dogmatism, employ a common defense strategy of divide-and-conquer, and take advantage of the phenomenon of underdetermination.

The term Kripkean dogmatism comes from a contemporary philosopher by the name of Saul Kripke, who described what he called a dogmatism paradox. It works like this:

(1)    Any evidence contrary to what I believe is false.

(2)    I believe that Bruno Hauptmann is innocent.

(3)    Evidence of Bruno Hauptmann’s guilt must be false.

I am bolstered in my belief by the phenomenon of underdetermination, which is the ally of all accused of crime. Philosophers tell us that nothing is absolutely certain, that the evidence we amass for any proposition always fails to prove the proposition beyond all doubt. Just last night I read an article by a contemporary philosopher which argued that we cannot even be certain that we exist as anything more than a random combination of atoms. Inventive defenders can always come up with objections to the evidence, point to anomalies in the evidence, and devise Rube Goldberg theories to explain away the evidence. Kripkean dogmatism can also come into play with positive evidence. It works like this:

(1)    Any evidence supporting my belief system must be true.  

(2)    I believe Bruno Hauptmann is innocent.

(3)    Evidence of Bruno Hauptmann’s innocence must be true.

By employing the strategy of divide-and-conquer, I look at each individual piece of evidence, proclaim it insufficient to prove Hauptmann’s guilt, and dismiss it from consideration. The problem with this strategy is that no single piece of evidence is sufficient to prove guilt. All the evidence, strong and weak, must be considered together in determining guilt.

Any quantum of evidence, no matter how convincing, can be “defeated” by employing this type of reasoning. This form of reasoning drives all conspiracy theories and explains why we still have people who believe that the earth is flat. Of course those who believe we live on the inside surface of a hollow earth know that the flat earthers are mistaken.

Even assuming that the evidence of Hauptmann’s guilt is undermined, we still have not achieved our objective of proving him innocent. The law recognizes that cases, unlike wine, do not get better with age. There must be compelling evidence of innocence. Simply raising suspicions that someone else might have committed the crime does not carry the burden of proof. Of course we can again employ Kripkean dogmatism to cherry pick our evidence, ignore counter evidence, and build a house-of-cards case against someone else.

Now let’s talk about theories that Hauptmann had an accomplice. We begin with the assumption that Hauptmann is guilty. Our next step is to build a compelling case against someone else. It couldn’t be done back when the case was tried. It can’t be done now. And it doesn’t appear to me that it is worth the effort to try.
NB: Our discussion of the issue of whether Hauptmann was actually innocent has been guided by the rationale of William T. Moore, District Judge of the Southern District of Georgia, as expressed in the case of In re Davis, Case No. CV409-130, 2010 WL 3385081 (2010). In his opinion Judge Moore states a methodology for evaluating claims of actual innocence and engages in a searching analysis of a claim of actual innocence. The opinion not only provides a template for conducting such evaluations, but gives an excellent example of how such evaluations should be conducted. You can read part one of his opinion here: http://www.gasd.uscourts.gov/pdf/409cv00130_92part1.pdf, and part two here: http://www.gasd.uscourts.gov/pdf/409cv00130_92part2.pdf.

Friday, October 4, 2013

THE TRAGEDY OF THE COMMONS

In economics, the tragedy of the commons is the depletion of a shared resource by individuals, acting independently and rationally according to each one's self-interest, despite their understanding that depleting the common resource is contrary to the group's long-term best interests. Economists give such examples as the overuse of common grazing land, overfishing on the high seas, and burning fossil fuels. According to tragedy of the commons theory, in each case, the individual's own self-interest is to use as much of the common resource as possible no matter what happens. If everyone else decides to be good citizens and conserve the common resource, then the rogue individual reaps great profits by overusing the resource. If the individual conserves and everybody else overuses the resource, then the individual perishes. Of course if nobody conserves the resource, eventually everyone perishes.

We have a similar situation right now in Washington. Each individual politician's own self interest is to toe a hard line and not yield an inch on the budget crisis. Let's assume a hypothetical senator named Phil E. Buster. Senator Buster thinks that he is going to curry favor with the voters back home by obstinately insisting on his position. If the other side caves in, then he is a big winner. He looks like a tough politician, the voters back home worship him, and he has gotten his way. If the other side does not cave in, then the country goes to Hell and he still gets re-elected by his adoring constituency. The same rationale works for Congressman D. Magog and President V. Toe. The result is legislative and executive gridlock and everyone loses.

Once upon a time when the world was young there was another republic which fell prey to the sort of gridlock we are seeing in Washington. Warring political factions in the Roman Republic kept the government on the brink of disaster by working the political mechanism so as to produce total gridlock. The Roman historian Livy tells us of factional infighting, governmental paralysis, and petty bickering which seemingly could only be resolved when an enemy army was at the gates of the city. When I recently read the first ten books of his Roman history, I was amazed at how the republic was able to last so long with such a government. It gives me hope that we Americans can somehow muddle through the insanity of Washington gridlock and go on to survive and prosper.

But the Roman Republic eventually reached a critical mass of gridlock and collapsed into a series assassinations (killing your political foes was the only way you could get things done) which led to civil war and the rise of the dictators Marius and Sulla. From there the government slipped into chaos and the Roman citizen's freedom was finally snuffed out with the rise of the Roman Empire under Caesar Augustus. It is my fervent prayer that we are not embarked upon this same course. I have no love for Obamacare, but if the only way it can be  totally defeated is to set our government upon the same path followed by the Roman Republic, I'm willing to put up with it.

There is an old joke that defines "Statesman" as "dead politician." A true statesman is one who can put the common good above personal interest. I fear that true statesmen are few and far between in modern day Washington.

 

Friday, September 27, 2013

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN CROSS-EXAMINES STEPHEN A. DOUGLAS

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN CROSS-EXAMINES STEPHEN A. DOUGLAS: When Abraham Lincoln defended Duff Armstrong in the Almanac Trial he was preparing to run for the United States Senate against Stephen A. Do...

Tuesday, September 24, 2013

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE CROSS-EXAMINER

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN THE CROSS-EXAMINER: The Almanac Trial is best remembered as an example of Lincoln's great skill as a cross-examiner. Granting that he performed a good cross...

Monday, September 23, 2013

"THE WEEK'S" STUNNINGLY BAD REASONING


I don’t like to read, watch, or listen to the news, and it’s not because the media concentrates on bad news (like the possibility that an asteroid might wipe out humanity) and trivialities (like Miley Cyrus’s twerking). I don’t like it because I hear very little good analysis and a great deal of fractured logic.

I was flabbergasted by a headline from The Week, an online magazine. The headline read: "The GOP's Stunning Hypocrisy." I suspected from the headline that I was going to find some stunning demagoguery in the article. I did. I counted approximately 21 points made by the article, and only two of them were germane to the stated topic—the GOP’s responsibility for the US tottering on the brink of fiscal disaster.

Of the 21 points made, the only germane point came when the article correctly debunked an advertisement run by an unidentified opponent of Obamacare. According to the article, the ad consisted of a creepy looking Uncle Sam giving a woman a vaginal examination. Since I am relatively certain that Obamacare doesn’t require gynecologists to dress up like Uncle Sam, the ad was obviously an attempt to stampede people into supporting the repeal of Obamacare by appealing to emotion.   

The other valid point was an admission that Obamacare is flawed, with a listing of some of its defects. (Let me hasten to point out that the simple fact of a program's being flawed doesn't make it a bad program. Nothing is perfect, and imperfection does not decisively invalidate a program. It's a question of how flawed it is and whether there is a less flawed alternative available. The jury system is a terribly flawed method of resolving legal issues, but it stands head and shoulders above any other method which has ever been devised).

The remaining points all contained logical fallacies. At the end of this post I’ll catalog the arguments and their flaws, but first I want to challenge the main point of the article—that if we go over the fiscal cliff, it will be because of those villainous Republicans.

I’ll be the first to say that there are some villainous Republicans—probably as many as there are villainous Democrats. But as the article admitted, there are many Republicans who want to work this issue out without going over the fiscal cliff. From the article, it seems that there is a faction within the Republican party who, according to the article, rabidly champion the defunding of Obamacare and are willing to shut down the government to achieve that end. I haven’t done a headcount, but I suspect that there are enough non-rabid Republicans who are willing to work with non-rabid Democrats to hammer out a compromise. The problem comes about because they cannot muster a veto-proof majority. This is tragic because of the next point I'm going to make.

On the other side of the issue is a President who has pronounced himself as steadfastly opposed to compromise as the anti-Obamacare faction of the Republican party. He says he won’t negotiate: “It’s my way or the highway.” If those Republicans who steadfastly oppose Obamacare to the point of government shutdown are insane (the article’s words, not mine), then the Democrat who just as steadfastly opposes compromise is also insane.

As I see it, neither side is insane, they’re just selfish. They have placed winning their point above the welfare of the country. It seems to me that both sides are satisfied to crash the ship of state because both sides believe that they’re going to  derive political benefit from the wreckage. I think that the President is the one who has correctly assessed the political landscape. He sees a win/win situation. His calculus probably goes something like this: Either he proves he is a tough guy by forcing Congress to bow to his will or he comes out looking like the victim of Republican irresponsibility. Whichever happens, the news media vilifies the Republican party, and the Democrats retain control of the Presidency and Congress when Hillary Clinton gets elected and hordes of Republican Congressmen are voted out of office. This is one reason I don’t like reading, watching, or listening to the news. I see selfish politicians making political hay and harming the welfare of the American people in the process.

Now for the article's fallacious reasoning:

[1] Lawmakers could fix all this today if they really wanted to. Really? Lawmakers can’t get anything done expeditiously. The statement is a gross oversimplification of the legislative process.

[2] "Uber-conservative" House Republicans are threatening to shut down the government. All House Republicans? Or just a small group of politicians which the article later calls uber-conservatives. This is the genetic fallacy, attributing to an entire group a trait exhibited by only a portion of the group. Also, these villainous Republicans can't possibly shut down the government. They can be outvoted by a coalition of Democrats and Republicans who are willing to compromise. The only person who can shut down the government is the President, by vetoing the compromise or by using his threat of veto to stymie compromise.

[3] Sane Republicans know the uber-conservatives are wrong. This point defeats the previous point by showing it to be false. It is also an argumentum ad hominem. You don’t logically advance your point by calling the opposition names.

[4] Republican Senator Richard Burr calls it "the dumbest idea I've ever heard." More argumentum ad hominem. Actually it is not a dumb idea. If you put your personal agenda above the public welfare, it is a quite rational course of action.

[5] Conservative columnist Charles Krauthammer says they are "out of their minds." and are flirting with political "catastrophe." Same critique as point (4) above.

[6] Karl Rove thinks it's stupid, too. Same critique as points (4) and (5) above. Arguments (2) through (6) are actually the same argument stated five different ways.

[7] The uber-conservative Republicans think Burr and Krauthammer aren't true Republicans. Non sequitur. The party affiliation of Burr and Krauthammer is irrelevant to resolution of this mess. The article is going to continue the non sequitur in the next point. Also argumentum ad hominem, calling the

[8] The uber-conservatives are “flat earthers” who don’t think Abraham Lincoln, Richard Nixon, and Ronald Reagan were true Republicans. More argumentum ad hominem, calling the uber-conservatives flat-earthers.

[9] This was the valid point about the tasteless ad depicting Uncle Sam doing a vaginal examination."

[10] The uber-conservatives want to force women to have transvaginal ultrasounds before having an abortion. This is just a continuation of point (9) above which relies on a species of ad hominem argument known as tu quoque, accusing the opposition of doing exactly the same thing they’re advocating against. .  

[11] This point is the admission that Obamacare is flawed.

[12] A USA Today poll shows that only 25 percent of Americans understand Obamacare. Probably a larger percentage than the percentage of legislators who read the bill before passing it. (The point I have just made is an argumentum ad hominem). The author made point [11] to set up point [12].

[12] The confusion is a “golden opportunity for Republicans. Non sequitur. How is it a golden opportunity for the Republican party? The author has already called it “the dumbest idea . . . ever heard,” (point [4]), conceived by people who are “out of their minds” (point [5]) and engaging in behavior which is “stupid” (point [6]).

[13] The super-smart president is engaging in a high-tech outreach strategy like the one he used to get re-elected. Characterizing Obama’s stubborn insistence on government shutdown before compromise as a high-tech strategy seems to me to be quite a stretch. Looks like the author is gilding the lily.   

[14] Republican holier-than-thou hypocrisy doesn't end with Obamacare. Ad hominem and irrelevant. We’re talking about Obamacare, not the human worth of Republicans. Republicans could all be hypocrites and Obamacare could still be a bad idea
[15-21]. More irrelevant ad hominem argument. It reminds me of a maxim attributed to the Roman orator Cicero: "If you have no case, abuse the plaintiff."

GRAND JURIES AND HAM SANDWICHES

I got an inquiry the other day concerning a case where a police officer ran his police cruiser over a suspect fleeing on foot. The officer was immediately fired, and a grand jury subsequently declined to file charges against  him. You can find the article which discusses the grand jury's action here: http://www.news-journalonline.com/article/20130919/NEWS/130919439/0/search. Warning: the dashcam video is both graphic and disturbing.

The reporter, Frank Fernandez of the Daytona Beach News Journal, asked me to  comment on what in general guides prosecutors to present cases to the grand jury rather than making the charging decision within the office. For editorial reasons, not all of my response was quoted in the paper. The quote was accurate, but it did not expound my full rationale for the position I took. Reporters only have limited space for each article, and they consult multiple "experts." They cannot include everything every "expert" says. (I put expert in quotation marks because I feel the term is over-used. A person who is knowledgeable about a subject is not necessarily an expert on the subject).

Here is the article: http://www.news-journalonline.com/article/20130922/NEWS/130929797?p=1&tc=pg&tc=ar.

Here, then is most of what I wrote:
 
It is fairly standard practice for SAO’s to refer such cases as this to a grand jury. The prosecutor in a case like this is in a damned-if-you-do-damned-if-you-don’t situation. If the prosecutor makes the decision unilaterally, no matter what decision the prosecutor makes, it will be criticized. A no-file decision will be criticized as being motivated by friendship of prosecutors for law enforcement officers. A decision to file is open to the criticism that the prosecutor is trying to gain political advantage by engaging in the prosecution. Sending the case to a grand jury somewhat ameliorates, but does not eliminate, these criticisms.
 
I left out some of my comments because they did not support the point I was making, but were introductory to my second point. Within the comments I made, I did not include a full discussion of the rationale for taking the case to the grand jury. I said taking the case to a grand jury only ameliorated the possible criticism rather than eliminating it. I made this statement because there is a standard criticism of grand juries: The standard criticism of grand juries is that a prosecutor can manipulate a grand jury into doing anything the prosecutor wants. This is true.
 
If a prosecutor uses the grand jury in this way, I believe the prosecutor is misusing the grand jury. Just as anyone who owns a firearm can misuse it to commit murder, any prosecutor can manipulate the evidence to get a grand jury to do what the prosecutor wants. This is summed up in the old saw attributed to the Hon. Saul Wachtler, a former judge on the New York Court of Appeals. Wachtler supposedly said that a "good" prosecutor can get a grand jury to indict a ham sandwich. To which I make the reply: A prosecutor who would do that is not a good prosecutor. In fact a prosecutor who would do that is dumber than a ham sandwich.
 
The vast majority of firearm owners never commit murder. The vast majority of prosecutors never ask a grand jury to indict a ham sandwich. The standard objection to taking cases to a grand jury, although colorfully stated, weighs should be accorded little weight.
 
I gave another reason for taking the case to a grand jury, and I think it is a powerful reason:
 
Simple negligence will not support a conviction for vehicular homicide. I can see where a prosecutor evaluating this case would come to the conclusion that you might have difficulty convincing a jury that this is more than simple negligence.  When the case is iffy, a grand jury can provide a very good barometer of what a petit jury will probably do. If the grand jury decides to no bill the case, that means you have no chance of getting a verdict of guilty before a petit jury. If the grand jury indicts, that means you have a shot at getting a conviction. I’ve taken many iffy cases to grand juries for just this reason, to better evaluate my chances of getting a conviction at trial. Taking the case to a coroner’s inquest isn’t going to accomplish this second purpose. In Florida the county judge is the coroner, and there is no coroner’s jury. The county judge decides, and you still have no feel for what a petit jury will do with the case.
 
A grand jury is a jury. A petit jury is a jury. A grand jury is probably going to think like a petit jury. A lawyer is not a juror and doesn't think like a juror. A grand jury will have better sense about what a petit jury will do than a lawyer. It makes sense for prosecutors, who are lawyers, to appeal to grand juries for help in sorting out whether a case should be filed. I have tremendous faith in the wisdom of grand juries. They have saved me from making terrible mistakes in filing, and they have caused me to prosecute case I would otherwise have no-filed.
 
I was also asked whether it wouldn't be better to take the case to a coroner's inquest. We don't have coroner's juries in Florida. Coupling this fact with the above argument for taking iffy cases to grand juries, you can immediately see one reason not to take the case to a coroner's inquest: The coroner is a judge. A judge is a lawyer. Lawyers are not as good as grand juries in predicting what a petit jury will do.
 
There are other reasons which I gave the reporter:
 
The only reason to take the case to a coroner’s inquest is to have the judge rubberstamp a previously made decision to no-file the case. You don’t think the case is worth filing, and you want the evidence out there for people to see so that they will agree with your decision to no file. I’ve taken a couple of cases to coroner’s inquests for this reason. Sometimes it works well, but sometimes it blows up in your face. Following the dictum “if it bleeds, it leads,” news outlets tend to report the salacious details from a coroner’s inquest, ignoring the more mundane evidence. If the salacious details work in favor of a no-file, there’s no problem, but if they work in favor of filing you can wind up causing more problems than you solve. Based on prior bad experiences with such inquests, I would not take a case to a coroner’s inquest unless the salacious details militated in favor of a no-file. In my experience, judges get very upset about being asked to hold a coroner’s inquest. They think that the prosecutor has decided to no-file the case and wants to shift the blame for the no-file to the judge.
 
Here are a couple of examples. I considered these cases no-brainers as far as the decision to no-file, but I also considered them cases which could result in an erosion of trust in the criminal justice system if we made the decision unilaterally. In both cases I felt it was better to sidestep the "ham sandwich" argument by going to a coroner's inquest. If the case were a no-brainer for filing, no purpose could be served by taking the case to a coroner's inquest. I would have taken both of these cases to a grand jury if the case were iffy OR if it were a no-brainer for filing. If the cases had not been homicide cases, and they clearly should have been filed, I would have simply filed charges.

First case: An officer did something stupid and it resulted in an arrestee being accidentally killed. There was a great deal of public sentiment about the case. Some very unreliable witnesses were making statements designed to whip the public into a frenzy of anger. We decided to take the case to a coroner's jury so that the public could see the very clear (but very dull)  scientific evidence indicating the death was accidental. We put on the unreliable witnesses that morning and they made highly inflammatory statements. We thoroughly impeached them, completely nullifying their testimony. The TV cameras were there that morning recording every word that was said. They left after lunch in order to make sure they got the story on the 6:00 PM report. They completely missed the dull, boring scientific evidence we put on that afternoon. What sound bites do you think they ran on TV that night? We had a nightmare aftermath.
 
Second case: Parents, for religious reasons, did not seek medical attention, and a child died. After we disposed of this case, the appellate courts of Florida held that parents should not be prosecuted in such a situation, but that decision was years in the future. Public sentiment ran high for filing. We took the case to a coroner's inquest, and the mother testified. Her tearful testimony, which was widely reported, caused the public sentiment to cool.

In this particular case, it cannot be said that the prosecutor acted inappropriately by taking the case to a grand jury and relying upon their wisdom to determine whether charges should be filed.