Wednesday, October 28, 2015


In the recent Democratic presidential debate, Bernie Sanders fielded a question from a viewer: "Do black lives matter? Or do all lives matter?" Sanders began his answer with a comment to the effect that "Of course, black lives matter," and then launched off into an impassioned monologue which, reduced to its bare essentials, said "The police of this country are a bunch of racists and we need to do something about it." Applause.

The question as worded seems to set up a false dichotomy: [a] Either black lives matter (implying that all other lives do not matter), or [b] All lives (except black lives) matter. Interpreted literally, the question makes no sense. It's not an either/or proposition. If all lives matter, then black lives matter because black lives are a subset of the set all lives.

A literally correct answer to the question, then, is:

Q: Do black lives matter, or do all lives matter?
A: Yes.

If we're simply looking at the surface meaning of the words, then Sanders' answer makes no sense:

Q: Do black lives matter, or do all lives matter?
A: Yes. The police are a bunch of racists!

The question doesn't seem to ask anything at all about the police. How did that become relevant? Apparently because Sanders and the questioner were either talking past each other or talking on code. 

It seems the "black lives matter" movement is generating more heat than light because the people who say "black lives matter" mean one thing and many people hear something else, and the people who say "all lives matter" mean one thing and many people hear something else.

Hopefully, what is meant by the words "black lives matter" is "black lives matter, too" not "black lives matter to the exclusion of other lives." Unfortunately, oftentimes what is heard is the latter statement rather than the former, which prompts the response "all lives matter," hopefully meaning "all lives, including black lives, matter." But then what is heard is "all lives matter except black lives."

I think  it is counterproductive when "black lives matter" slogan is spoken with one of the following two meanings: (a) "Black lives matter, and let's kill some police officers to prove it," as Louis Farrakhan seems to be saying, or (b) "Black lives matter and the police are a bunch of racists," as Bernie Sanders seems to be saying.

For a contrasting view on the issue of whether the police are a bunch of racists, see Heather Mac Donald's article in the City Journal, "The Myth of Criminal-Justice Racism." 

Monday, October 26, 2015


I got a call the other day from a reporter who had some concerns about a retrial in a murder case where the evidence had been destroyed by the police. At first blush, it sounded terrible, but I knew there had to be more to the story than met the eye. If the case had already been tried, the police didn't have the evidence to destroy. It was all in the custody of the clerk, having been placed into evidence at the first trial. The first part of the interview consisted of me asking more questions of the reporter than the reporter asked of me. I found out that the defendant had been convicted several years ago of robbery and murder, and that the appellate court had reversed the murder conviction, but not the robbery conviction, because of a problem with the jury instructions. The clerk still had the evidence that had been entered at the first trial, and the police had only destroyed the evidence that had NOT been entered at the first trial.

The defense was now complaining that the destroyed evidence may have had something in it that would have proved the defendant innocent, and therefore he should be set free. I opined that if there was anything in the destroyed evidence that would have proved the defendant innocent, the defense attorney would have used it at the first trial, and it would be safe and secure in the clerk's custody and available for the second trial. Apparently the judge agreed with me, because the trial went forward despite the loss of the evidence. You can read about it here: "Retrial to Start Without Destroyed Evidence". (The reporter slightly muffed my quote. What I originally said didn't sound quite that dumb).

The police made an honest, if not-too-bright, mistake, and the defense couldn't prove that any harm was done. The situation is controlled by a line of cases which holds that if potentially useful evidence is inadvertently destroyed by officers acting in good faith, there is no problem. See, e.g., Arizona v. Youngblood, 488 U.S. 51 (1988). The key is whether the police were acting in good faith, and it takes more than mere negligence to negate good faith.

Monday, October 5, 2015


ABRAHAM LINCOLN'S ALMANAC TRIAL: CONTRECOUP FRACTURES: When I wrote The Almanac Trial I questioned the testimony of one of the witnesses, a Doctor Charles Parker. I just didn’t see how what he...