ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN FOR THE PROSECUTION

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN FOR THE PROSECUTION: When Abraham Lincoln's good friend, Ward Hill Lamon, got himself elected State's Attorney for the Eighth Judicial Circuit, Lincoln w...

ANOTHER LOOK AT THE WIZARD OF ID'S GOLDEN RULE

On May 3, 1965, in the comic strip “Wizard of Id,” the king called on his subjects to remember the Golden Rule. When they asked what he meant by that, they got the reply “Whoever has the gold, makes the rules.” At least that’s the earliest incarnation of this particular quotation that the Quote Investigator could find. Memory is a tricky thing. I remember the quote coming from the comic strip "B.C." I suggest that at least in the area of American politics, the Wizard of Id got it backwards, just as Karl Marx did with his Marxian economic theory.

According to Marxian economic theory, the more work you put into something, the greater its value. This is obviously untrue. I could lavish hours of toil into making mud pies, and at the end of the process they would still be worthless mud pies. What Marx saw was people toiling mightily and producing great wealth, and he confused cause and effect. The hard work didn’t cause the end product to have great value. The great value of the end product gave the incentive to work hard.

Turn the Wizard of Id’s aphorism around: “Whoever makes the rules, gets the gold.” For proof of this proposition, I refer you to the financial disclosures of longtime legislators. Look at the disclosures they filed when they were freshman legislators and compare the disclosures made later in their tenures in office. Even after leaving office, public officials rake in untold wealth with book deals, consulting fees, speaker’s fees, and other forms of pork.

The possibility of becoming as rich as Croesus in public office attracts all sorts of candidates who are more interested in getting rich than in governing right. There have always been politicians of that sort, but in times past we had smaller electorates and they were easier to identify. The way campaigns are run in today’s media, it’s almost impossible to weed out the sociopaths, con men, and nincompoops.

COIN STRUCK BY CROESUS, KING OF LYDIA

Which brings me to a suggestion for a Constitutional Amendment. It has zero chance of ever being adopted, but it would be interesting to see if we wound up with better government as a result of its implementation. In order to discourage sociopaths and con men from seeking elective or appointive office, the office should be made to look as unattractive as possible. In order to keep sociopaths and con men from doing major damage and amassing large fortunes over long tenures in office, the tenures in office should be limited. In ancient Athens, one of the world’s first democracies, they addressed these two issues by (1) having elected officials pay for some public services, such as festivals and the building of warships, out of their own pockets, and (2) limiting the term in office to one year, after which the official was disqualified from holding public office for ten years.

CLEISTHENES, THE FATHER OF
ATHENIAN DEMOCRACY

I think we can get by with something a little less Draconian than the Athenian system: (1) Appointed and elected office holders, including judges, shall be entitled to no more benefits than any other government workers. (2) Appointed and elected office holders, including judges, can hold office no longer than six years, after which they are disqualified for a period of six years from holding that office again. When I’m talking about appointed office holders, I’m talking about high level appointees, like judges and cabinet members. We've already got a term limit provision for the office of President, so I would except the presidency from requirement (2).

At the risk of repeating myself: the benefit of this system is that it limits the incentive of crooks to seek public office to begin with, and it limits the amount of damage they can do if they achieve public office. Another thing it will do is get more people involved in running the government. I can’t see where it is a bad thing to spread the responsibility for governing around among more of the citizen body. This is supposed to be a democracy, isn’t it?

INTERVIEWS, INTERROGATIONS, AND CONFESSIONS

Working at the law school, I get called on from time to time to act as an “expert” for interviews with various news media. Usually the questions deal with criminal law, law enforcement, and prosecution issues. Sometimes I can help the media understand various issues, not because I am an “expert,” but because I have had sufficient experience with those issues to be able to figure out what is probably going on in most of the situations.

I gave an interview the other day on an issue that I considered a “tempest in a teacup.” There was a law enforcement investigation into a minor crime which resulted in the suspect being not only exonerated but proven innocent beyond a reasonable doubt. So what was the big deal? Unfortunately, however, the suspect was a local celebrity and somebody gave an anonymous tip to the media.

The media had focused in on a tape recorded interview given by the suspect and wanted to know if the officer had violated the suspect’s rights or otherwise done anything wrong. My answer was that, aside from being impolite, the officer had done nothing legally or morally wrong. What I saw wrong with the interview was the interview technique used by the officer.

The officer started the interview off by telling the suspect he was guilty, telling him they had an ironclad case against him, and calling on him to confess. When the suspect started denying the crime, the officer cut him off and went back to telling him how guilty he was. Then the officer gave the suspect an excuse for having committed the crime and tried to get him to adopt that excuse as a reason he did it. The only problem was, he was innocent and he didn’t do it. He gave the officer his whereabouts (he was at a restaurant when the crime occurred), and when the officers went and interviewed the restaurant personnel, they supported the alibi. He also gave other corroborative evidence which, when checked out, proved true; and he asked if they had any kind of surveillance footage. At the time of the interview, they didn’t have surveillance footage, but when they did pull the footage it established that the suspect wasn’t at the scene of the crime.

As I said earlier, a tempest in a teacup. The officer took a complaint, made an investigation, and ultimately cleared the suspect. The only problem was the officer could have been more polite. But the situation got me to thinking about the type of interview technique the officer used. It's used by many law enforcement agencies, but I don't like it. Here's why:

It looked to me like the officer was using what is called the Reid Interrogation Technique, a nine step technique for corkscrewing confessions out of people. I thought I could see the first three steps being deployed, but I didn’t see any evidence of the next six steps. I can’t say for sure that the officer was using the Reid Technique because each step of the nine steps of the Reid Technique is an interrogation technique that predates Reid. Reid simply took the various techniques, put them together, and made a system out of what had previously been ad hoc hit-or-miss tactics sometimes used by interviewers.

I don’t like the Reid Technique because I think it is based on a flawed premise. It presupposes the suspect is guilty and its objective is to get him to confess. I think a better presupposition is something like: The suspect may be guilty and my objective is to find out if he is.

Suspects can be browbeaten into false confessions. I have seen it happen. When I was a public defender, I had a client who loudly proclaimed his innocence and told me he there was no way he was pleading guilty. “Fine,” I said, “We’ll go to trial.” The morning of trial I spoke with the complaining witness, and I was not impressed with his veracity. I went back to the holding cell to discuss the case with my client, and our chief investigator was in the cell with him. They were in the middle of a conversation, and the investigator wasn’t being very polite. I stood there with my mouth open as my client, crying like a baby, said he was guilty and was ready to plead guilty. I found my voice. “Wait just a damn minute here. You’ve been telling me you’re innocent and you want a trial. I’m ready to give you your trial today. What do you mean telling me you want to plead guilty?” My language may have been a little spicier than that. He assured me he wanted to plead guilty. “Okay,” I said, “It’s your decision. I’ll go talk to the state attorney.” I went into the courtroom and approached the state attorney and asked him about a plea in the case. “No,” he said, “I’ve dropped the charges. I don’t believe the complaining witness.”

When I wrote Prosecution Principles I suggested a method for interrogating suspects that is a little more labor-intensive than the Reid Technique, but I think it’s based on a much better premise. Here’s what I said:

Three Types of Questioning. There are many types of questioning aimed at many different objectives, but we need concern ourselves with only three–the interview, the interrogation, and the examination. Interviews and interrogations occur outside the courtroom, usually in anticipation of some court action, and examinations occur inside the courtroom in support of a court action. Interviews and interrogations do not necessarily have to be given under oath, but examinations are almost always conducted with the witness under oath. In interviews and interrogations, the examiner is also the audience, and the examiner seeks to discover information from the witness. In an examination the examiner should already know the witness’s information, and the objective is to disclose the information to the audience, either judge or jury. An interview presupposes a cooperative witness, while an interrogation presupposes the witness to be uncooperative. An examination presupposes some sort of legal compulsion to answer, usually in the form of a subpoena.

The Interview. The interview of a friendly witness presents the examiner with a relatively easy job. The witness willingly discloses the necessary information, if only the examiner can ask the right questions. Too often examiners can fall victim to tunnel vision, focusing too closely on issues too narrowly defined. A good interview technique is to simply say, “I want you to tell me what happened. Just start at the beginning and go to the end, and don’t leave anything out in the middle.” Listen and take notes for follow-up questions. After the witness has disgorged his information, follow up with specific questions. Do not fear going “outside the crime scene tape,” asking questions on any peripheral areas that may be of interest. Do not neglect the witness’s background. Establish the precise nature of any relationships among the principles to the incident. You must be very careful with the facts presupposed in your questions. The witness, wanting to cooperate, may accept presuppositions which are untrue, to the detriment of the truth-seeking process. In one long-forgotten murder case a young assistant public defender [yours truly] got each of the witnesses to say on interview that the victim “ran up on” the defendant’s knife. He went to trial confident that he could prove the victim committed the functional equivalent of suicide by impaling himself on the defendant’s knife. He was bitterly disappointed when none of the witnesses testified to that “fact” at trial. In re-evaluating his performance, the young attorney realized that when he interviewed the witnesses, they simply tried to be helpful by accepting his preconceived notion of what had happened. Had he more carefully tried to keep from telegraphing his preconceptions, he would not have deceived himself. In addition to being careful with the presuppositions of the question, you should also be expansive with the presumed field of answers, using the least restrictive prescribed form for the answer.

The Interrogation. Where an interview is an exercise in education, an interrogation is an exercise in extraction. Many examiners approach the interrogation of a suspect with the objective of extracting a confession. This is a capital mistake, as the suspect may be innocent. The examiner should approach the suspect interrogation with the same objective as any other form of questioning–to extract the truth. You are more likely to achieve the truth if you do not try to impose your preconceptions about the truth upon the witness. The interrogation presents this conundrum–-although the examiner must still be careful with the facts presupposed in the question, lack of cooperation from the witness demands that the examiner narrow the presumed field of answers and adopt a more coercive prescribed form. How can a witness be coerced into telling the truth without resort to torture?

A certain amount of coerciveness comes simply from your position as a prosecutor, a law enforcement officer, and an officer of the court. The authority inherent in that position exerts a more or less subtle psychological pressure to come forward with the truth. Beyond that, the witness’s desire to appear helpful, inherent in any questioning situation, gives a subtle push toward cooperation. Finally, once the witness begins to cooperate by answering questions, the witness’s aversion to being thought dishonest exerts pressure.

The witness will appear dishonest in one of three ways–-either the testimony will be illogical, internally inconsistent, or incompatible with other evidence. As the witness’s testimony becomes illogical, confront the witness with that illogical and ask that it be reconciled. As the witness attempts to reconcile the illogic, she will either give up the truth or become more illogical. The more illogical the witness becomes, the more ridiculous she looks. The more ridiculous she looks, the greater will be the pressure to tell the truth. As the witness begins to try to repair her credibility, she will begin to make statements at variance with what she has already told you. Confront her with these inconsistencies. As she attempts to repair these inconsistencies, she will either become more inconsistent or more truthful. The witness will also become inconsistent with other known facts. As these inconsistencies arise, contradict her with them. Do not let the witness know what you already know unless and until the witness tells you something at variance with what you already know. Not knowing how much you know and not wanting to be gainsaid on other statements, the witness will either come around to telling the truth, or completely destroy her credibility, or shut down completely and refuse to give further information. Patience is if paramount importance. The less impatient you appear, the less hostile you are as you point out the problems with the witness’s testimony, the longer the witness will talk before shutting down completely. [Something I used to tell officers when they were disappointed that a suspect hadn’t confessed: “A horrendous lie is just as good as a confession; sometimes even better.”]

Quintilian’s Corkscrew. Most people try to be truthful most of the time. Rather than lying, many witnesses will simply become incredibly uncooperative in giving forth the information. They will deploy every available evasive technique in their efforts to prevent you from getting the information you want. The ancient Roman rhetorician Quintilian had this to say about corkscrewing the truth out of a reluctant witness:

“With the witness who is going to tell the truth with reluctance, the prime success for the interrogator is to extort from him what he did not want to say. This can only be done by questioning which starts a long way from the point. He will then give answers which he does not think harm the Cause; later on, he will be led from a number of admissions to the point when he cannot deny what he does not want to say.” [Quintilian, The Orator’s Education, 5.7.17, Trans. Donald A. Russell, Harvard University Press, Cambridge, Massachusetts, 2001. p. 343.

Beginning with small, innocuous admissions, the examiner builds on those admissions to larger ones. By the time the witness has made all the preliminary admissions, he will have locked himself into making the targeted admissions.

I recently learned that a system which is very similar to my recommendations is being taught as the PEACE Model of Investigative Interviewing. It is supposed to be the interview model used by law enforcement in the United Kingdom. If I were the head of a law enforcement agency, I believe I would be inclined towards having my investigators trained in the PEACE Model rather than in the Reid Technique. At least one up side of the PEACE Model is that when the news media listen to the tape recordings of an entire interview, they won’t be criticizing the officers for being rude. Which reminds me. If I'm not mistaken, one thing that the Reid Technique teaches is that you don’t turn on the tape recorder until the final stages of the interrogation when you are ready to memorialize the suspect’s confession.

REALITY TV MEETS THE REPUBLICAN PRIMARY

"Can a nation remain healthy ... whose brightest stars are film stars?" - Winston Churchill

"The best argument against democracy is a five-minute conversation with the average voter." - Winston Churchill

Upon hearing today that Donald Trump had topped the poles among Republican candidates for President, I immediately thought of the above two quotes. Here at the beginning of the twenty first century we are confronted with the spectacle of a reality TV star becoming the frontrunner for the Republican Presidential nomination.  I am certain that the Democrats can scarce contain their glee. Given the reports that Trump has contributed over $100,000 to the Clinton Foundation, one might suspect that his candidacy is aimed more at helping Clinton get elected than at getting himself elected. Unless he is totally out of touch with reality, he has to know that he has zero chance of getting elected. He does, however, have a much larger chance of turning the Republican Party into a laughingstock and sabotaging the candidacy of the eventual Republican nominee. Yet he is the frontrunner for the Republican nomination.

All of which puts me in mind of another aphorism:

“In a democracy you get the leaders you deserve.” - Joseph-Marie, comte de Maistre

IMMUNITY, STAND YOUR GROUND, AND THE NRA

Years ago, when I was an assistant state attorney (ASA), I got sued for malicious prosecution. As an ASA, I had absolute immunity from suit for malicious prosecution. In order to avail myself of that immunity, I had to plead and prove that I was an ASA. The plaintiff who was suing me did not have to prove that I wasn’t an ASA, I had to prove that I was.

I once testified on behalf of an officer who was being sued for false arrest. He had immunity from suit because he was a sworn law enforcement officer and he was acting in good faith when he made the arrest. He had to plead and prove that he was a sworn law enforcement officer acting in good faith, the plaintiff did not have to prove that he wasn’t acting in good faith. My testimony helped him to prove he was acting in good faith, and therefore he got the suit against him dismissed.

I once represented a client who was immune from suit because of former jeopardy. He had already been prosecuted for the crime and already been acquitted. I filed a motion to dismiss the prosecution on grounds of immunity for former jeopardy. Now, if we had gone to a hearing, who do you suppose had the burden of proof? I, on behalf of my client, had to prove that my client had already been prosecuted and acquitted. The state did not have to prove that he had not been prosecuted and acquitted.[1]

That’s the way every form of immunity that I know anything about works. If you think you have immunity from suit or prosecution, you file your motion to dismiss and then go into court and prove that you have the immunity.

Recently the Florida Supreme Court ruled that Stand Your Ground (SYG) immunity is exactly like every other form of immunity. If you want to claim the immunity, you have to prove that you are entitled to it. Now the NRA (of which I happen to be a member of long standing) thinks this is terrible. I think that on this particular subject the NRA is absolutely, positively, 100% out to lunch.

What the NRA wants is to make SYG immunity different from every other kind of immunity. What the NRA wants to do is to make the prosecution prove its case twice in order to get a conviction. Prove the case beyond a reasonable doubt (BRD) before a judge and then prove it BRD before a jury. It’s hard enough to prove a case BRD once, much less twice.

What happens if a defendant cannot prove by a preponderance of the evidence (POE) that he acted in self-defense? The state still has to go to trial before a jury and prove BRD that he did not act in self-defense. There is nothing terrible about having two shots at getting acquitted, even if you have the relatively light POE burden of proof on the first shot.

What is it that privileges someone who says “I have immunity because I shot someone in self-defense” over someone who says “I have immunity because I’ve already been prosecuted for this crime,” or “I have immunity because I was granted transactional immunity in return for testifying in a case,” or “I have immunity because [insert reason here]”? The Florida Supreme Court says nothing privileges SYG immunity over any other. The NRA says it should be privileged over any other form of immunity. The NRA is dead wrong. Here’s hoping that our state legislature has the good judgment to tell the NRA that the Supreme Court is right.
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[1] We didn't have to go to a hearing on the case. When I showed the prosecutor the certified copy of the not guilty verdict, he dropped the charges.