SPEAKING TO THE PRESS

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: http://www.tampabay.com/news/legal-experts-weigh-in-on-soundness-of-lindsey-defense-strategy/1221182

THE LORD CHANCELLOR'S SONG

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)!

A GOOD QUOTATION ABOUT THE OFFICE OF THE PROSECUTOR

"[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.

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.

AN INTERESTING PARALLEL BETWEEN RICHARD HAUPTMANN AND TED BUNDY

I've been doing some research in the Lindbergh kidnapping case, a case which has generated a large and vocal group of advocates for the innocence of the man who was executed for the crime, Richard Hauptmann.

One point which the skeptics frequently bring up is the ladder Hauptmann used to climb into the child's second story bedroom window. Why were there no fingerprints on the ladder? Doesn't that prove Hauptmann was innocent? No, it doesn't, and we can demonstrate why it doesn't by an interesting parallel to Ted Bundy's kidnapping of Kimberly Diane Leach.

(1) Hauptmann used the ladder as an instrumentality in the kidnapping of the Lindbergh child. Ted Bundy used a stolen white van as an instrumentality in the kidnapping of Kimberly Diane Leach. As a matter of fact, Bundy spent several days driving the van around North Florida.

(2) Despite the use of the latest technology, they failed to identify Hauptmann's prints on the ladder. Despite the use of the latest technology they failed to identify Bundy's prints in the van.

(3) The ladder was tied to Hauptmann by other means (chiefly wood analysis). The van was tied to Bundy by other means (chiefly shoe tracks and microanalysis).

(4) Failure of fingerprints to prove the proposition that someone touched an object does not equate to proof that the person never touched the object.

(5) Conclusion: The absence of identifiable Hauptmann prints from the ladder is not evidence of Hauptmann's innocence.

There are two interesting sidelights on the issue of fingerprints in the Bundy case.

Bundy lived for several weeks in a room at the Oak Apartments in Tallahassee. After his arrest, fingerprint technicians were dispatched to the room and went over it from ceiling to floor looking for Bundy's fingerprints. No identifiable prints from Bundy were found.

All Judgments in Florida have the defendant's fingerprints rolled onto them in open court before the sentencing judge. This makes it easier to prove prior convictions when the defendant comes back to court. We used a copy of the Judgment and Sentence from the Chi Omega trial during the Kim Leach penalty phase to prove up Bundy's prior convictions for crimes of violence. His fingerprints on the Judgment and Sentence were so faint and indistinct that you could hardly see them.

There are other parallels between the two cases which I will share in later posts.