Wednesday, October 23, 2013


ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN'S AUTOBIOGRAPHIES: In 1859, as he was preparing to run for president, Lincoln sat down and wrote a brief autobiography for use in his campaign, and put it in t...

Tuesday, October 22, 2013


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


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.



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


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.


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).



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


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:, and part two here:

Friday, October 4, 2013


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.