Thursday, January 30, 2014

MORE THOUGHTS ON STAND YOUR GROUND

Since the much-ballyhooed enactment of Florida’s “Stand Your Ground” law (SYG), I have received numerous calls from newspeople who wanted me to voice my opinion on various cases where someone has gotten shot or stabbed. They seem to think that SYG somehow makes dramatic changes to the dynamics of how a case is tried before a jury. The law has, of course, been modified, but as far as how a case is tried to a jury, there should be little difference from the way it was tried before SYG. Here is a somewhat oversimplified explanation:

In the context of a jury trial, SYG simply means that the defendant doesn’t have to back up or try to run away before using deadly force in self-defense. Formerly the defendant had a duty to retreat if he could do so safely. In many armed confrontations retreat is not an option, and the law prior to SYG allowed you to stand your ground in such situations. I don’t know many people who can outrun a bullet.
The  major change that SYG made in Florida’s self-defense law deals with pretrial matters. It gives the defendant the option to try to prove to a judge before trial that he acted in self-defense. Before trial the defendant can file a motion to dismiss the case and get it dismissed if he can prove he acted in self-defense. Unless the defendant has an ironclad self-defense case, he would be foolish to file such a motion. At an SYG hearing the burden of proof is on the defendant to show that he acted self-defense. At a jury trial the burden of proof is on the state to disprove self-defense.  In order to prove that he acted in self-defense, he has to give the state a pretrial preview of his defense strategy, and if he loses, the state is prepared to meet his defense at trial. Additionally, the defendant will more than likely have to take the witness stand and be cross-examined at an SYG hearing. The defendant has to prove that he was in fear of death or great bodily harm, and the only sure way to do that is to take the stand and testify that you were in fear. If you lose the SYG hearing, the state now has the transcript of your testimony at the hearing which they can use against you at trial. 



In the final analysis, SYG is more something for reporters and pundits to emote over than anything else. In many cases where you hear the media bellowing about SYG, it is a non-issue. Take the Zimmerman case for instance. Zimmerman’s defense was that he was flat on his back with Martin sitting on top of him beating him to death. If Zimmerman’s defense was true, under pre-SYG law he had no duty to retreat. Although a lot of ink was spilled over SYG in the Zimmerman case, it was really a non-issue for that case.

Having said all that, I feel compelled to close by saying I think SYG is a bad law because it gives people a license to kill in situations where killing isn’t necessary. I worked a lot of homicides in my 32 years as a prosecutor and defense attorney, and I saw lots of killings which were legally justified. I also saw lots of legally justified killings which could have been avoided if the killer had used better judgment. A justifiable homicide is not always a necessary homicide. SYG will increase the number of justifiable homicides which are not necessary homicides.
My advice to anyone is that if you’re attacked and you can safely retreat, do so. It may damage your self-image as macho guy, but it will save a life (maybe yours). In the words of a martial arts instructor I once knew “If somebody comes after you, walk away. If he follows you, run. If he catches you, kill him.”

Wednesday, January 29, 2014

Cross-Examination Blog: IMPEACHMENT BY PRIOR NON-STATEMENT

Cross-Examination Blog: IMPEACHMENT BY PRIOR NON-STATEMENT: MORE CROSS-EXAMINATION IN THE LINDBERGH KIDNAPPING CASE Prosecutor David T. Wilentz (left) and Key Witness John F. Condon Th...

Friday, January 24, 2014

Thursday, January 23, 2014

ANTICIPATING "SHERLOCK" SEASON 3

I don't like surprises, I don't like to be kept in the dark, and I don't like unhappy endings. That may be why I so often re-read a good book rather than search out a new good book to read.

I quite naturally didn't like being kept in the dark about how Sherlock survived his "Reichenbach Fall." Being a Holmes afficiando of long standing, I knew he was going to "die" in the final episode of Season 2, and I knew he was going to survive.

When he did his swan dive from the top of the hospital, it seemed that only an illusionist of the caliber of David Copperfield could have pulled that off and escaped unscathed. There were some suggestions that Sherlock was engaging in some sleight-of-hand, with his asking his M.E. friend Molly for help and with the bicycle accident Watson had running to look at the body of his fallen comrade. Other viewers with better eagle eyes than me picked up on additional clues.

The hype leading up to the American premiere of Season 3 got me to wondering just how he did it, so I did a modicum of spoiler research and found out that ... But maybe you, the reader, like surprises. Knowing the plot outline has not dimmed my enthusiasm for the premiere on January 19 but has increased it. It appears that they have done some very good things with the story while keeping the characters true to their personalities in Seasons 1 and 2.

I now have another mystery--how did they cram so much action into a single hour? I'll find out tomorrow.

***

Well, tomorrow came and went, and we still don't know how Sherlock pulled off the feat of faking his death. I suspect that we don't know because the writers don't know. They painted themselves into a corner with Sherlock's swan dive off the roof of the hospital, and couldn't come up with a plausible explanation for how he did it.

It seems Season 3 is going to be more character-driven than the two previous seasons. This is good as far as it goes, but it seems that the mystery took a decided back seat to character development in the first episode. As "Elementary's" second season has shown, you can have character development help to drive the plot rather than getting in the way of the plot. The episode of "Elementary" where Moriarty returned was an admirable example of how character development was integral to the mystery. Perhaps "Sherlock" should study how "Elementary" does it before starting production on Season 4.

I haven't seen the last two installments of "Sherlock 3" yet, but the reviews seem to suggest that as Sherlock becomes more human in the series, the series suffers. Here is another area where "Sherlock" could take a lesson from "Elementary." "Elementary" started off with a more human Holmes in the throes of chemical dependency. The storyline was actually enhanced as Holmes worked through his chemical dependency. The critics seem to think that in the English rendition, Sherlock's discovery of his humanity has a negative effect. As far as episode 1 is concerned, it hasn't been much of an impediment to the story. We'll see how things play out in the next two episodes.

TRASH TALK, SELLING TICKETS, MUHAMMAD ALI, AND MICHAEL SHERMAN

Back when Muhammad Ali was still Cassius Clay, he hit upon a plan to sell tickets to his fights. Ali studied the antics of a professional wrestler who went by the name of Gorgeous George. George loudly proclaimed both his beauty and his superiority over his prospective opponents. Everybody hated him and they flocked to his matches to see him get beat. He only seldom got beat. The more he trash talked, the more people hated him, the more they flocked to his matches to see him get beaten. The more he won, the more people hated him, the more they flocked to his matches to see him get beaten. The trick was to keep winning. If a trash talker made a habit of losing, he was a laughingstock, not a villain. Of course, fixed matches kept George winning, but talent kept Ali on top.  

So Ali sold a lot of tickets with his mouth. Few may now remember that before he was “The Greatest,” he was “The Louisville Lip.” He did something else with his trash talking—he got into the minds of his opponents. His victories over Sonny Liston and Joe Frazier came as much from getting into their heads as from superior boxing ability. Liston was the “Bear,” and Frazier was the “Gorilla.” People remember the “Thrilla in Manila.” How many remember Ali carrying around a rubber gorilla and pounding on it while saying words to the effect that this was what he was going to do to the gorilla at the Thrilla in Manila? Frazier never forgave him, and had I been in Frazier’s shoes, I wouldn’t have either.
When did Ali do his trash talking? Before the match. Unless there was real bad blood between him and his opponent (as with Ernie Terrell), he had good things to say about his opponents after the match. Why? Nothing constructive could be accomplished by running down his opponents after the match. All he could do with his trash talk after the match would be to injure his opponent and take the luster off of his victory. Talking about how “sorry” your opponent is after you defeat him accomplishes only three things: (1) It hurts his feelings; (2) it suggests that your victory was not much of an accomplishment because it was achieved against an inferior opponent; and (3) it makes you look like a jerk to no purpose.

A lot of athletes since Ali have emulated his trash talking style without understanding why he did it. I suggest that this is what was going on with Richard Sherman immediately after the Seahawks victory over the 49ers.  From some of the comments he has reportedly made in the wake of the uproar over his display, it appears that he has realized his mistake. Only time will really tell.

Sherman might learn something from the example of Fred “the Hammer” Williamson in Superbowl I. Williamson was a brash defensive back who had a tendency to “sell tickets” with trash talk. In the leadup to Superbowl I, he talked about how he was going to knock the Green Bay receivers out of the game. He became something of an object of ridicule when it turned out that he was the one who got knocked out of the game.
Something all trash talkers need to have is a thick skin. By their antics they invite retaliation. Ali knew how to handle the backlash from his trash talk. Ali used to predict the round in which he would knock his opponents out, and he was often correct. When he fought Doug Jones, however, his tongue wrote a check that his fists couldn’t cover. He began by saying that he was going to knock Jones out in six rounds. Later he cut the number to four. The fight went the distance and Ali won a ten round decision. When it was pointed out to him that he had failed in both his predictions, he defended himself by saying that he was correct after all because six and four equaled ten.

Sherman, it seems, is somewhat better at dishing out disrespect than he is at taking it. When some people called him a thug for his comments, he responded that his critics were being racist and that “thug” was code for the “N-word.” He went on to point out that predominately white hockey players regularly engage in thuggery when they fight on the ice.
Here’s where I agree with Sherman: (1) When he proclaimed that Michael Crabtree was sorry, he wasn’t acting like a thug, he was acting like a jerk. There’s enough real thuggery in professional sports without characterizing boorish behavior as thuggery. (2) Pro hockey players who engage in fist fights on the ice are acting like real thugs. That’s one reason I don’t watch pro hockey.
Here’s where I disagree with Sherman: The mere fact that someone called him a thug doesn’t mean that the name-caller is a racist. It means that the name-caller is engaging in hyperbolic language by taking mere jerkery and transforming it into thuggery. The name caller is doing exactly the same thing that Sherman did to Michael Crabtree when he took Crabtree’s misfortune on one play and suggested that it showed Crabtree to be a sorry player.
I have a suggestion for aspiring young athletes who might want to emulate Sherman's behavior: (1) Don't say things that make you look like a jerk. (2) If you simply must act like a jerk, don't dish out verbal abuse if you can't take it.

Thursday, January 16, 2014

Monday, January 13, 2014

A SILLY IDEA

Have you ever had what you thought was a good idea but remained silent because you were afraid people would laugh at you? Have you ever regretted voicing an idea when people had a good horse laugh about how silly you were? If your answer is yes to the second question, it is almost certainly yes to the first.

I have had my face reddened many times because people thought that something I said was a ridiculous idea. I vividly remember being corrected by a world-renowned expert on everything (at least that’s what he thought) for having the stupid idea that Leon Spinks had a chance to beat Muhammad Ali. The expert said he personally knew Ali and there was no way Spinks could win. Of course 20/20 hindsight shows that Ali was so overconfident he lost his first fight with Spinks.
I said all this to make the point that seemingly silly ideas often are not silly at all. And I made that point to keep you from laughing as I share  another silly idea of mine.

First, the problem my silly idea addresses: Although English is a language which is rich in synonyms, there is one area where we don’t have enough words. Just as the Eskimos are reputed to have a multitude of names for snow, I think we need multiple words for “fact.” I’ve always disliked making the objection “facts not in evidence” because half the time I objected, the “facts” weren’t facts. We’ve got an either/or view of truth and falsehood, but sometimes truth and falsehood aren’t either/or propositions. For example, the New Testament refers to Pilate as a procurator, but he wasn’t. He was a praetor, as evidenced by a recently-discovered ancient inscription where Pilate refers to himself as a praetor. This discrepancy doesn’t mean that the Bible is false. The evangelists were describing Pilate as the governor of Judea. Most provincial governors were procurators. They can be forgiven for choosing almost, but not quite, the correct label for Pilate. Even Tacitus, who is admired as the greatest Roman historian, called Pilate a procurator. Most facts are like this—imprecise.

We have some imprecise facts in the story of Abraham Lincoln's Almanac Trial. Over the years historians haven't been able to agree on where the moon was when Pres Metzker got killed. Some have it on the eastern horizon, some on the western; some say it hadn’t risen yet, some that it had just set; some say there was no moon at all that night. They can’t all be right. I recently read a book on the trial which roundly criticized some historians for getting the moon in the wrong place. I think it’s important to know precisely where the moon was, but I’m not ready to condemn other writers’ imprecise placement of the moon. Most of them were wrong about where the moon was, but they were absolutely right about where it wasn’t—and that was what was important. The eyewitness said the moon was high overhead, and it wasn’t, which called his identification of the killer into question. Where was the moon really? I undertook an extensive investigation of the question in Abraham Lincoln's Most Famous Case: The Almanac Trial, and I answer it in the chapter entitled “The Misplaced Moon.”     

Second, my silly idea: I propose two new words for the English language—ffact and phact. Here’s how I see it working. “Ffacts” would be data which have the important point right and are near 100% accurate. I borrowed the idea for the spelling of the word from the technical term “iff,” which means if and only if. “Phacts” would be data which have the important point right, but are less than 50% accurate. I got the spelling for “phact” because “ph” sounds like “f” but isn’t. “Facts” would then be data which have the important point right and are more than 50% accurate. Fiction would remain data which have the important point wrong, no matter how accurate they may be.

Let’s apply my system to the question of Pilate’s office in Judea. (1) It is a ffact that he was a praetor. Pilate’s importance to history stems from the fact that he ruled Judea, and he occupied the office of praetor. (2) It is a fact that Pilate was governor of Judea. This doesn’t tell us his precise office, but it tells us that he ruled Judea. There is a margin for error here, but it isn’t important. (3) It is a phact that Pilate was a procurator. This datum tells us what was important about Pilate—he ruled Judea—but it gets his precise office wrong.

I think it’s a neat system which can serve to add clarity to many discussions. A lot of information gets branded as fiction when it is really phact, and we can be misled into thinking that people are spouting fiction when in truth, they are giving us phacts--data which is inaccurate, but which gets the important information right. That's why  I cringe when I see a book with a title which promises to uncover lies and half-truths about historical events. I fear that they are debunking phacts in order to advance some agenda or the other.

Sunday, January 12, 2014

ABRAHAM LINCOLN'S ALMANAC TRIAL: DUFF ARMSTRONG'S BAIL HEARING

ABRAHAM LINCOLN'S ALMANAC TRIAL: DUFF ARMSTRONG'S BAIL HEARING: In writing the book on the Almanac Trial I tried to present my conclusions and to show the line of reasoning I took to arrive at them. I r...

Saturday, January 11, 2014

Friday, January 10, 2014

SHERLOCK HOLMES ON THE ART OF DEDUCTION--SYSTEMATIZED COMMON SENSE

When I wrote my blog post comparing Johnny Lee Miller's Elementary to Benedict Cumberbatch's Sherlock, I had no idea that it would prove to be such a popular post. It seems that the public fascination with Sherlock Holmes has lived from the 19th century into the 21st. My fascination with the character has continued unabated since I first discovered my grandmother's two volume set of Holmes stories back in the 1950's. I had not been long in my career as a prosecutor when I began to realize that the stories were more than entertaining--they had an educational element which could inform the investigation of crimes. Several times over the years I have gone through the Holmes corpus and copied down nuggets of wisdom, and each time I managed to lose my list. Finally, a few years back I got a Kindle edition of the entire Holmes corpus and went through it highlighting the great detective's aphorisms. My list is now more or less permanent. I had a thought of going through them, systematizing them, and making comments on how they informed the investigation and prosecution of some of my cases, and perhaps I'll do that some day. For now I am mired in two other book projects, and while the commentary on Holmes remains on my bucket list it will be a long time before I can get to it--if ever.

For now, I am going to simply blog the quotes without any rhyme or reason other than to place them in the order that they appear in my Kindle edition of the Holmes corpus. On the face of them, some seem to be contradictory. The contradictions however lie in Arthur Conan Doyle's haphazard choice of words and in the ambiguities of the English language. Others among the aphorisms I deem incorrect, but this list does not compile my thoughts on the art of deduction. It compiles the thoughts of the great detective Sherlock Holmes (as they were placed in his brain by his creator, Arthur Conan Doyle).


From a drop of water a logician could infer the possibility of an Atlantic or a Niagara without having seen or heard of one or the other.

It is a capital mistake to theorize before you have all the evidence. It biases the judgment.

There is nothing new under the sun. It has all been done before.

They say that genius is an infinite capacity for taking pains. It’s a very bad definition, but it does apply to detective work.

When a fact appears to be opposed to a long train of deductions, it invariably proves to be capable of bearing some other interpretation.

The most commonplace crime is often the most mysterious because it presents no new or special features from which deductions may be drawn.


Eliminate all other factors, and the one which remains must be the truth.

I never guess. It is a shocking habit—destructive of the logical faculty.

It is of the first importance not to allow your judgment to be biased by personal qualities.

When you have eliminated the impossible, whatever remains, however improbable, must be the truth.


If … we are dealing with forces outside the ordinary laws of Nature, there is an end of our investigation. But we are bound to exhaust all other hypotheses before falling back upon this one.

The temptation to form premature theories on the basis of insufficient data is the bane of our profession.

There should be no combination of events for which the wit of man cannot conceive an explanation.


It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.

As a rule the more bizarre a thing is  the less mysterious it proves to be. It is your commonplace, featureless crimes which are really puzzling.

The bigger the crime the more obvious, as a rule is the motive.

It has long been an axiom of mine that the little things are infinitely the most important.

Singularity is almost invariably a clue. The more featureless and commonplace a crime is, the more difficult it is to bring it home.

Circumstantial evidence is a very tricky thing. It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.

The ideal reasoned would, when he had once been shown a single fact in all its bearings, deduce from it not only all the chain of events which led up to it but also all the results which would follow from it. As Cuvier could correctly describe a whole animal by the contemplation of a single bone, so the observer who has thoroughly understood one link in a series of incidents should be able to accurately state all the other ones, both before and after.

We will take it as a working hypothesis for want of a better.

It is, of course, a trifle, but there is nothing so important as trifles.

I had come to an entirely erroneous conclusion which shows how dangerous it always is to reason from insufficient data.

Circumstantial evidence is occasionally very convincing, as when you find a trout in the milk, to quote Thoreau’s example.

Q: If his purpose were innocent, why did he not say so? A: And if it were guilty, why did he not invent a lie? His silence appears to me to cut both ways.

It is an old maxim of mine that when you have excluded the impossible, whatever remains, however improbable, must be the truth.

Data! Data! Data! I can’t make bricks without clay.


Nothing clears up a case so much as stating it to another person.

Improbable as it is, all other explanations are more improbable still.

See the value of imagination? … We imagined what might have happened, acted upon the supposition, and find ourselves justified.

[The theory is all surmise]. But at least it covers all the facts. When new facts come to our knowledge which cannot be covered by it, it will be time enough to reconsider it.

Any truth is better than indefinite doubt.

It is as well to test everything[, even the most obvious fact].

It is of the highest importance in the art of detection to be able to recognize, out of a number of facts, which are incidental and which are vital.

I make a point of never having any prejudices, and of following docilely wherever fact may lead me.

The most difficult crime to track is the one which is purposeless.

The principle difficulty in [the case] lay in the fact of there being too much evidence. What was vital was overlaid and hidden by what was irrelevant.


[In] the realms of conjecture [even] the most logical mind may be at fault.

It is not really difficult to construct a series of inferences, each dependent upon its predecessor and each simple in itself.

Before we start to investigate that, let us try to realize what we do know so as to make the most of it, and to separate the essential from the accidental.

It is impossible as I state it, and therefore I must in some respect have stated it wrong.

One should always look for a possible alternative and provide against it. It is the first rule of criminal investigation.

Q: What are we to do with that fact? A: To remember it—to docket it. We may come upon something later which will bear upon it.

It is a capital mistake to theorize in advance of the facts.


[In the face of these incongruous facts we may devise] a temporary hypothesis. If the fresh facts which come to our knowledge all fit themselves into the scheme, then our hypothesis may gradually become a solution.

It is an error to argue in front of your data. You find yourself insensibly twisting them round to fit your theories.

All our reasoning seems to point that way. At any rate, we may take it as a hypothesis and see what consequences it would entail.

Each fact is suggestive in itself. Together they have cumulative force.

When all other contingencies fail, whatever remains, however improbable, must be the truth.

If the matter is beyond humanity it is certainly beyond me. Yet we must exhaust all natural explanations before we fall back upon such a theory as [the supernatural].

The smallest point may be the most essential.


We must look for consistency. Where there is a want of it we must suspect deception.

One drawback of an active mind is that one can always conceive alternative explanations which would make our scent a false one.

The gravest issues may depend upon the smallest things.

My simplest art, which is but systematized common sense.

When you have eliminated all which is impossible, then whatever remains, however improbable, must be the truth. It may well be that several explanations remain, in which case one tries test after test until one or other of them has a convincing amount of support.

 

ABRAHAM LINCOLN'S ALMANAC TRIAL: "AUNT HANNAH" ARMSTRONG AND ABRAHAM LINCOLN

ABRAHAM LINCOLN'S ALMANAC TRIAL: "AUNT HANNAH" ARMSTRONG AND ABRAHAM LINCOLN:   " Aunt Hannah" Armstrong   The popular version of the story of Lincoln’s Almanac Trial has him answering the call of an ...

Monday, January 6, 2014

Saturday, January 4, 2014

ABRAHAM LINCOLN'S ALMANAC TRIAL: NEARING THE FINISH LINE

ABRAHAM LINCOLN'S ALMANAC TRIAL: NEARING THE FINISH LINE: I have had a very busy Christmas break. An over large class last semester, coupled with an overly ambitious final project assignment contri...

ABRAHAM LINCOLN'S ALMANAC TRIAL: NEARING THE FINISH LINE

ABRAHAM LINCOLN'S ALMANAC TRIAL: NEARING THE FINISH LINE: I have had a very busy Christmas break. An over large class last semester, coupled with an overly ambitious final project assignment contri...