Saturday, February 28, 2015


I have previously written about the similarities between our case against Ted Bundy for kidnapping and killing Kim Leach and the case against Bruno Richard Hauptmann for the kidnapping and killing the Lindbergh baby. One striking similarity that I did not discuss was the nature of the proof in each case. In each case the prosecution had three things which must be tied together to make the case. In the Bundy case we had a white van which was used in the kidnapping, and we had to tie both Bundy and Kim to the van. We also had to put Bundy and Kim together. As I analyzed the case, if we could (1) put Bundy in the van and (2) put Kim in the van and (3) put Bundy and Kim together, we could prove he murdered her. This analysis could be diagrammed onto the corners of a triangle. Bundy, Kim, and the van were the points of the triangle, and the evidence tying each of these three together were the legs of the triangle. Eventually, with the help of a graphic artist, we turned this triangle diagram into a visual aid for final argument.


This visual aid was a key factor in persuading the jury that we had proven our case. When I argued the Bundy case I gave the longest final argument I ever gave in any case before or since. Toward the end of the argument I felt I had started losing the jury. They were becoming restless and inattentive, and I was becoming disheartened. It was about this time, though, that I came to the finale where I would unveil the triangle chart and explain how all the evidence tied together. The jury was mesmerized, not by my oratorical skill, but by the diagram and how it placed everything into perspective.


Although the prosecution team did not seem to notice, the Lindbergh case was amenable to the same sort of triangular analysis. In the Lindbergh case the baby had been stolen from its nursery on the second floor of the Lindbergh home and later a mysterious figure identified as Cemetery John had extorted $50,000 out of Lindbergh on the promise to return the baby. Two years later Hauptmann was arrested in possession of almost $15,000 in Lindbergh ransom money. The prosecution had to tie three figures together to get a conviction. They had to put Hauptmann in the nursery with the baby; they had to put Cemetery John in the nursery with the baby; and they had to prove that Hauptmann was Cemetery John.

In the Bundy case we had a myriad of small circumstances which, taken together, established the three legs of our triangle. In the Lindbergh case they had many small circumstances, but they also had three large circumstances: the homemade ladder which the kidnapper left at the scene; the ransom money; and the ransom notes. In other words they had a LADDER, some LETTERS, and the LOOT to form the three legs of their triangle. The LADDER tied Hauptmann to the scene with proof that he was the one who built it. The LETTERS tied Cemetery John to the scene because they were all written in the same hand and one of them was left in the nursery. The LOOT showed that Hauptmann was Cemetery John because it was given to Cemetery John and later found in Hauptmann’s possession. The LETTERS also tied Hauptmann to Cemetery John because eight handwriting examiners testified that Hauptmann wrote all the ransom letters.

If we take all this and put it on a triangle diagram, we get something that looks like this:
If we were going to use this as an actual visual aid in a final argument, we would make it more elaborate and would add in all the circumstantial evidence on each leg of the triangle, not just the three most salient circumstances. As it turned out the prosecution didn’t need such a visual aid to prove their case, but it certainly could not have hurt them had they used something like this.

Wednesday, February 18, 2015


 I just finished listening to an excellent series of lectures from the Great Courses on the New Testament. The professor is Bart D. Ehrman, who thinks that the writers of the Gospels (whom we shall call the Evangelists) botched the story of Jesus because they got inaccurate information about what Jesus said and did, and then they changed the details of the flawed information that they got in order to conform the story to their particular theology. He even goes so far as to say that the Evangelists told stories that they knew to be untrue.

Ehrman begins his analysis by positing that none of the Evangelists had any personal knowledge of the details of Jesus’ life. He then says that the stories about Jesus were transmitted orally for some 35-65 years before they were written down by the Evangelists. Anyone who has played the parlor game “gossip” knows what happens to twice and thrice told tales.

He offers as an example Mark’s and John’s conflicting dates of the crucifixion. Mark firmly fixes the crucifixion on Passover. John just as firmly dates it to the Day of Preparation, the day before Passover. Ehrman says that John knew the date was Passover but knowingly changed the date to the day before. Why? Because that’s when the Passover lambs were slaughtered and Jesus is the Lamb of God. So according to Ehrman, John told a lie to convey what he believed to be a spiritual truth. I don’t think so. As I discuss why I don’t think so, I will accept Ehrman’s assertion that none of the Evangelists had personal knowledge of Jesus, but I can’t accept his second assertion that they had only oral sources because one of the Evangelists (Luke) tells us he used multiple written sources. 

Ehrman compares Bible scholarship to police investigation, in that they both involve searching for and evaluating clues. I don’t claim to be a Bible scholar, but I do claim to know something about criminal investigations. Ehrman speaks of three evaluative tools that Bible scholars use when attacking the Gospels. He calls them independent attestation, dissimilarity, and contextual credibility.
(1) Independent attestation—If a story is told by multiple independent sources, it is more likely to be true. E.g. John, Mark, Paul, Tacitus, and Josephus are independent sources. They all say Jesus was crucified. Their agreement makes it probable that Jesus was in fact crucified. The same sort of analysis is true of criminal investigations. The more witnesses we have to an event, the greater the likelihood of the event.

(2) Dissimilarity—If the Gospels say something about Jesus that is dissimilar to what later Christians believe, it is more likely to be true. E.g., in Mark’s story of the Syro-Phoenician Jesus referred to non-Jews as dogs. This doesn’t sound like what later Christians thought about Jesus’s attitude toward non-Jews. Jesus probably referred to non-Jews as dogs. In criminal cases we use a similar criterion: when a party comes forward with evidence that is contrary to the party’s position, it is considered more credible.

(3) Contextual credibility—When various persons in the Gospel stories act as we would expect Second Temple Jews to act, these actions have more credibility. If they act like people from a later stage in Christian history, then that action is suspect. Once again, a similar yardstick is employed in evaluating evidence in a court of law.

Here are some additional yardsticks we use in a court of law which might have some application to the question of Gospel interpretation:
(1) You should never call anyone a liar unless you have an ample evidentiary basis for doing so. Forman v. Wallshein, 671 So.2d 872, 875 (Fla. 3d DCA 1996).
(2) The mere fact that two witnesses disagree does not mean that either of them are lying. Boatwright v. State, 452 So.2d 666 (4th DCA Fla. 1984).
(3) When confronted by conflicts in the testimony of witnesses, you shouldn’t jump to the conclusion that somebody is lying. McLeod v. State, 128 Fla. 35, 174 So. 466 (1937).

The conflict between Mark and John about the date of the Crucifixion is not an ample evidentiary basis for calling either Mark or John a liar.  One of them, of course, has to be wrong, unless different sects of Second Temple Jews celebrated Passover on different days—a resolution of the conflict which has been put forward by some students of the Gospels.

Interestingly, I once had a case in which the credibility of a key witness depended on the date of Easter. He said that his girlfriend couldn’t accompany him on a drug smuggling run because it was over the Easter weekend and she needed to be in church on Easter. Big problem. The weekend of the drug smuggle wasn’t Easter weekend. It looked as though our witness was discredited until further investigation showed that the girlfriend belonged to some minor denomination of the Eastern Orthodox Church which celebrated Easter on a different Sunday than Protestants did. Turned out nobody was lying.
Does this suggest anything about the conflict between John and Mark? Could it be that neither Evangelist was lying but that both were reporting the facts as they sincerely believed them? Maybe Ehrman has it backwards. Maybe John called Jesus the Lamb of God because he sincerely believed Jesus was crucified the day before Passover with the rest of the Passover lambs. Or maybe John only knew that he was crucified around Passover and decided it must have been the day before because Jesus was the Lamb of God. Or maybe he was just mistaken about the date—that doesn’t change the fact that Jesus was crucified.

In my blog on Memories of Murder Weapons I talked about how memory works and how witnesses retell events they’ve seen. I won’t rehash everything I said there, but the bottom line is that we only truly remember the major points of an event and when recalling the event, we “remember” the details by filling in plausible inferences about what happened. For instance, I remember seeing John shoot Mary. When I describe John shooting Mary I say that John pulled the trigger on his firearm. I didn’t see John pull the trigger, but guns won’t fire unless you pull the trigger, therefore I “remember” John pulling the trigger. It’s a subconscious process, and I truly believe that I saw John pull the trigger. Psychologists call this process “confabulation.”

When I wrote The Last Murder, a book about a case I prosecuted, I was remembering events that had happened over three decades in the past. Checking my recollections against newspaper accounts, police reports, and the memories of others involved in the case, I found that I was frequently wrong about the nuances of a transaction but never wrong about the major events of the transaction. When I wrote The Almanac Trial, I wrote it using letters and statements of many of the participants in the trial, but these letters and statements were written three decades or more after the trial. There again, the witnesses were in conflict on the details of the trial, but not the main facts of the trial.

When the Evangelists wrote, they would have had at their disposal both written accounts of the life of Jesus and the reminiscences of eyewitnesses to the life of Jesus. In other words, they’d have been in pretty much the same situation I was in when I wrote The Last Murder and The Almanac Trial. That means that they had accounts which agreed as to the major details but were in conflict as to the minor details. They would therefore have had to make judgments about which minor details were more accurate. E.g. In the story of the healing of the paralytic, his friends tore open the roof of a house that Jesus was in and lowered the paralytic through the hole to get him to Jesus. Mark said they dug a hole in the roof and Luke said they tore up the shingles to the roof. Does it really matter which they did? They made the hole. By the way, Mark was more likely right. First Century Judean houses didn’t have shingled roofs. Be that as it may, I’m not prepared to expel Luke from the New Testament because he was mistaken about the construction of Judean roofs in the time of Jesus.

I’ve worked with the testimony of thousands of witnesses, and I’ve seen all kinds of conflict in testimony. Like Ehrman, I see conflicts in the testimony of the Evangelists. I outlined some of them in The Case against Christ. But in my estimation the conflicts (1) are minor, (2) give no valid reason to doubt the honesty of the Evangelists, and (3) give no valid reason to think that their account of the life of Jesus is untrue.

Saturday, February 14, 2015

Sunday, February 1, 2015


ABRAHAM LINCOLN'S ALMANAC TRIAL: FAIRS AND FESTIVALS: There are some upcoming events which are relevant to my book  Lincoln’s Most Famous Case . The first is the Olustee Festival , which ...