Saturday, March 31, 2012


I'm getting a lot of inquiries from the media concerning the Trayvon Martin, George Zimmerman case and particularly on Florida's "Stand Your Ground Law." Here's one of the latest:

Monday, March 26, 2012


Departing from my usual habit of studiously ignoring 24 hour news channels, I watched one today. I saw an anchor ask Angela Corey if she knew where George Zimmerman was, and then act as though Corey had committed malfeasance in office when she said she did not. It's not the chief prosecutor's job to keep track of potential defendants, and it's no reflection on Corey because she didn't know. I prosecuted for almost 30 years and the only time I knew the location of one of my defendants was when he was in jail. As long as he came to court when summoned, I had no desire to know where he was.

Then I saw a "former prosecutor" ranting about how horrible it was that Zimmerman had not been arrested. If she would think back to her days as a prosecutor, I am sure she could come up with a number of good explanations for why the arrest hasn't been made yet. Unless a defendant was a severe flight risk, I was seldom in a hurry to make an arrest.

The police department, which felt it had good and sufficient reasons to delay the arrest, has felt the heat of the media frenzy and begun leaking details which tend to explain why they weren't eager to make an arrest before they got their case more thoroughly investigated. If I were the prosecutor on the case, I would be upset that this information has been disseminated, but I fully understand that the police felt they were acting in self defense.

Interestingly, one newscast I saw cherry picked a single fact from the leaked information to televise and ignored all the other leaked information. Instead of running the relevant facts, they decided to air the completely irrelevant fact that Trayvon Martin had gotten into trouble over some marijuana residue in his backpack.

One would suspect that the media is working to aggravate a situation which is volatile enough already. This case needs to be tried in the court room, not the news room. We all need to just take a deep breath, calm down, and wait to see how the case unfolds. There will be plenty of time to critique the police and prosecutors after the case is over.

Sunday, March 25, 2012


This should probably be a tweet rather than a blog post, but I've been watching and reading the news lately (something I swore off several years back because it was so depressing) and I keep having the same thought over and over.

High schools (and colleges) nationwide should add a required course of study in effective thinking or informal logic. Given the state of public debate in the United States today, I can only conclude one of three things, none of which are encouraging--either our leaders are clueless, or they think we (the public) are clueless, or both we (the public) and our leaders are clueless. What passes for logic in public debate this day and age shows a dreadful lack of critical analysis. There is almost no appeal to logic in public debate, and what little "logic" I see is fallacious.

A celebrity's thoughts on [insert issue here] are no more profound than anyone else's. Expert opinions are no better than anyone else's when the expert is giving an opinion outside his/her area of expertise. Driving a particular brand of car, using a particular deodorant, or drinking a particular brand of alcohol  is not going to cause members of the opposite sex to fling themselves at your feet. Describing your opponent in abusive language does not demonstrate that your opponent's position is wrong. All members of [insert group here] are not villains; but the fact that all members of the group are not villains doesn't mean that all members of the group are saints. Bad people can have good ideas, and good people can have bad ideas. I could go on, but then I might slip into the fallacy of argumentum verbosium.

If everyone had at least been exposed to a course of rigorous instruction in critical thinking skills, maybe our leaders wouldn't be so quick to make such poor arguments, and maybe we wouldn't be hoodwinked if they did.

Friday, March 23, 2012


Let's perform a thought experiment. Let's say that I am a world class sprinter (I'm not) walking down the sidewalk. I see a 5'2" 350 pounder with a limp and a smoker's cough hobbling toward me. He obviously cannot run fast or far, but he has a club in his hand and, between wheezing gasps for breath, he is shouting threats to brain me with the club. He's 30 yards away when I first see him. I can obviously save my life and spare his by turning around and running away. What should I do? Florida Statute 776.012 says that I am perfectly within my rights to "stand my ground" and shoot him dead without taking a backward step. And Florida Statute 776.032(2) warns investigating law officers not to arrest me.

There has been a huge outcry against law enforcement for not making an arrest in the recent Trayvon Williams shooting. There have even been suggestions that the failure to arrest was the product of racism. Although the shooting may have been the product of racism, the failure to arrest was a logical consequence of applying the law of Florida as it now exists. When there are no witnesses to a killing and the killer gives an unimpeached statement that crime was in self defense, then you are bound by law to treat that statement as true. The police had an unwitnessed killing and a statement by the killer that the killing was in self defense. They have to accept that statement until they can amass enough evidence to prove it is untrue. With no proof that the statement is untrue, they will violate Florida Statute 776.032(2) by arresting the killer. Before "Stand Your Ground" was enacted, they could have carried him to jail because he didn't try to avoid the killing by retreating. I'm sure that law enforcement is hard at work trying to find evidence to impeach the claim of self defense, but until they do they cannot arrest.

What can be done to fix this? Nothing in the case of Trayvon Martin, but for the protection of future potential victims like him, Florida should restore the duty to retreat outside one's home prior to using deadly force in self defense. We should not value macho conceit over human life. If it's a choice between feeling like a wimp because I ran away and killing someone needlessly, go ahead and call me a wimp. And Florida Statute 776.032 should be repealed in its entirety. Section 776.032's warning against arresting killers isn't the only thing wrong with the statute.

And one other thing. Some people are blaming Martin's death on the fact that he was wearing a hoodie. That's like blaming a rape victim for the way she dressed.


I frequently get called by the press to answer questions concerning various issues having to do with criminal law. Sometimes my answers sound reasonably intelligent, sometimes they don't. See if you can decide which category these remarks fall into:

Thursday, March 22, 2012


From the Gilbert and Sullivan comic opera, Iolanthe, first performed at the Savoy Theater in London, 1882:

When I went to the Bar as a very young man, (said I to myself, said I),
I’ll work on a new and original plan, (said I to myself, said I),
I’ll never assume that a rogue or a thief is a gentleman worthy implicit belief
Just because his attorney has sent me a brief, (said I to myself, said I)!

Ere I go into court, I will read my brief through, (said I to myself, said I),
And I’ll never take work I’m unable to do, (said I to myself, said I),
My learned profession I’ll never disgrace by taking a fee with a grin on my face
When I haven’t been there to attend to the case, (said I to myself, said I)!

I’ll never throw dust in a juryman’s eyes, (said I to myself, said I),
Or hoodwink a judge who is not over-wise, (said I to myself, said I),
Or assume that the witnesses summoned in force to Exchequer, Queen’s
Bench, Common Pleas, or Divorce
Have perjured themselves as a matter of course, (said I to myself, said I)!

In other professions in which men engage, (said I to myself, said I),
The Army, the Navy, the Church, and the Stage, (said I to myself, said I),
Professional licence, if carried to far, your chance of promotion will certainly mar–
And I fancy the rule might apply to the Bar (said I to myself, said I)!

Wednesday, March 21, 2012


"[T]he prosecuting officer occupies a semi-judicial position: that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duty he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be found". Joseph Hodges Choate, May, 1909.

Friday, March 16, 2012

Verdict on the James Ossuary Trial

After hearing 138 witnesses, considering over 400 evidentiary exhibits, and reflecting an inordinate length of time over a 12,000 page trial transcript, Judge Aharon Farkash has arrived at a verdict, and he supports his finding with a written opinion over 400 pages in length. Oded Golan and Robert Deutsch are not guilty of antiquities forgery. I am sure there is a very good reason why it took five years to try this case, and I'd like very much for someone to explain it to me.

The burden of proof in Israel is the same as in the United States--beyond a reasonable doubt. It seems to me that it shouldn't have taken the judge five years to figure out that the prosecution was not going to be able to carry its burden of proof. It seems that the prosecution at some point would have realized they weren't going to be able to convict the defendants and moved to dismiss the case. Although I have not followed the case closely, I was a prosecutor long enough to be able to size up the prosecutive merit of a case without reading the entire file. It seemed to me from the outset that the case reeked of reasonable doubt.

In 2002 the news broke that Oded Golan had an ossuary (a bone box) inscribed with the words "James, son of Joseph, brother of Jesus." (First Century Jerusalemite Jews practiced two-stage burial.  They would put an unembalmed body into a cave to await decomposition, and when the body fully decomposed, they would put the bones in an ossuary). A number of highly reputable experts pronounced the ossuary to be a genuine relic of the First Century, and a number of others ballyhooed the ossuary as belonging to James the Just, who was mentioned in Josephus, the Gospels and Acts as the brother of Jesus of Nazareth.

Although almost all experts have adjudged the ossuary to be genuine, some have claimed that the words "...the brother of Jesus" were added centuries later. The issue(s) at trial became: Are the words "...the brother of Jesus" original or were they added later? Did Golan and his co-defendants (a) forge the words, or (b) know that the words were forged?

The acquittal really answers none of those questions. At a minimum, it simply means that the prosecution failed to prove beyond a reasonable doubt that Golan and his co-defendants knew the words were forged. At a maximum, it means that the prosecution failed to prove beyond a reasonable doubt that the words were forged.

Based on the little I have read on the case, I think the inscription is genuinely that of a man named James ben Joseph who had a brother named Jesus; but the man is not necessarily James the Just, brother of Jesus of Nazareth. You might say "It's highly improbable that there could be two men in First Century Jerusalem who were named James ben Joseph and had a brother named Jesus." To that I would respond "It's highly improbable that two unrelated men named Will West, who had identical facial features and biometrics, could both go to Leavenworth Prison in the early 1900's; but it happened." The incident led to the abandonment by American law enforcement agencies of the Bertillon System as a method of identifying suspects. They replaced it with a new system of fingerprinting.