Jurors Dazzled by Science or Just Dazed?


How would you feel if you were on trial for murder and the jury’s verdict depended on whether or not they could really figure out the odds that the DNA found at the scene indicated you were the most likely killer or not? What if you didn’t even understand what the DNA expert meant by 1 in 5 versus 1 in 15?

What if a key piece of evidence against you was a generic, plastic garbage bag and one expert claimed the difference between it and a bag found in your possession was miniscule? Then another expert claimed the difference was massive? And no one in the courtroom, including you, could figure out who was right?

Cops use statistics, such as those collected and published by the FBI, to focus their investigations. For example, statistics indicate that most women who are murdered are victims of domestic violence (in other words, are murdered by someone near and dear to them). So, the first “person of interest” in an investigation of a woman’s murder is her boyfriend or husband. This is smart investigation–as long as the FBI statistics are right, as long as they’re properly interpreted, and as long as the woman wasn’t actually murdered by a stranger. It is also imperative that the cops consider all alternatives before they arrest someone.

Prosecutors aren’t supposed to use statistics to decide whom to indict, and they aren’t supposed to use statistics as evidence or in their arguments–except when the statistics are necessary to interpret forensic evidence. When prosecutors present DNA evidence to a jury, they use statistics. When prosecutors present hair and fiber evidence, they use statistics. When prosecutors present fingerprints and other sorts of evidence, they have to skirt around statistics and talk about “points” that seem to “match” “to a reasonable degree of scientific certainty” (which is a completely unscientific way of stating things, BTW).

The problem is that jurors don’t understand statistics, yet they are asked to view statistics as proof of guilt.

For that matter, lawyers and judges don’t seem to understand statistics, either. And many expert witnesses do a poor job of explaining statistics to the jury.

One of my pet peeves is the poor quality of math education in this country. I’m not surprised no one understands statistics. I certainly managed to graduate from college without understanding them. I doubt that most people know the difference between the mean and the median. Then there’s the whole problem of not knowing how “to do the math” when the math involves percentages.

Two recent trials involved an abuse of statistics. In one instance, the abuse seems to be countenanced by case law–but that doesn’t make it right. That trial was the trial of Joshua Rosa. The other instance, it seems to me, occurred because the judge did not understand the math. That trial was the Melanie McGuire trial.

To be continued . . .

Sunflowers, Cookies, and Umbrella Stands–Who Was Online on Christmas Eve?

An interesting aspect of the investigation of computer searches these days is that the search engines use searches as a way of making money off of advertising. Whenever you search (on Yahoo, Google, or MSN, etc.), the search engine not only tries to figure out what web sites most closely match your needs but also which advertisers (who are paying them to display their ads) are most likely to be of interest to you.

Not only does a long list of websites display, but at various places on the screen paid ads also display.

How do the search engines decide which ads to display? which to list near the top of the screen?

The techniques are becoming very sophisticated, but in 2002 they must have been cruder than now. For instance, I imagine (guess, speculate) that cookies were a primary tool then. A cookie is a small file that a website deposits on your hard drive when you visit it. So, if you like house accessories featuring floral motifs and you visit a flowery website, it deposits a cookie with this fact about you on your computer. The cookie file contains all sorts of information, including, for example, the search words you typed into the search engine which led you to their site. 

Another way the search engine finds the best sites for you is to examine the “keywords” in the “header” of the web page. A website featuring gardening tools and accessories might have “hidden” keywords to attract web surfers to their site: a person who likes floral motif yard and garden implements and home items, such as a sunflower-motif umbrella stand, might type in a keyword such as “home weather vanes” and the search engine might display its description (something such as this): Garden and home accessories featuring daisies, sunflowers, roses … “

This is important to understand with regard to the issue that was raised in the Scott Peterson trial.

I’m trying–in vain, so far–to find the actual transcript text of the testimony concerning the computer forensic investigation of the Peterson computer on Dec. 24. The clearest report I can find is the AP story at this link: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/08/31/PETERSON.TMP

Nothing I have found yet confirms my memory that someone claimed to be able to tell who was actually at the keyboard when the shopping site involving a sunflower-decorated umbrella stand was accessed.

The interpretations of this computer forensics data are interesting, but obviously were unclear to the jury.

So, I’m going to try to recreate what I think might actually have been recorded to the hard drive. First, someone booted up the computer and may or may not have had to enter a password to log on to a personal “account” on the computer. Then, someone was running some kind of searches on the web. From the AP report, a Yahoo ad must have popped up on the search screen. Someone clicked on the ad, which displayed a Yahoo shopping page with the tell-tale sunflower-decorated umbrella stand. This happened in fifteen minutes from 8:30 to about 8:45. This was derived by a police investigator named Lydell Wall’s examination of the hard drive.

The key information isn’t who logged on or who might have been at the keyboard, in my opinion. The key is this Yahoo ad.

Someone needs to “interrogate” someone at Yahoo who would know the algorithms for display ads for the Yahoo search engine in 2002-2003. What made that ad pop up? What cookies were on the hard drive that led Yahoo to display a sunflower-motif umbrella stand? What search words were typed in, which brought up that “impression” (view) of the shopping site link?

To me, this suggests that Laci (who liked sunflowers) had previously searched on keywords involving sunflowers. She used that computer, whether or not it required a password and whether or not it also accessed Scott’s sexual email messages. The only other explanation is that at some time Scott himself searched for sunflower motif objects on that computer.

But you won’t know for sure unless you talk to Yahoo. It is also possible that Scott was a weather freak and his previous searches and the cookies on the computer led him to click, quite by coincidence, on a shopping site involving weather vanes and a sunflower umbrella stand. Only Yahoo can say–and another investigation of the hard drive that takes into consideration the cookies.

The fact that someone actually clicked on an ad that led to a Laci-oriented shopping site is also important, of course. Why? Because you have to ask why someone would click on that site on Christmas Eve morning.

Attorney Geragos is right–the umbrella stand tends to indicate that Laci was still alive at 8:45 on that morning. I’m no expert on the crime timeline. Maybe he killed her at 8:46 or even later. I’m not saying I’m convinced he’s innocent.

The prosecution is wrong–the odds that anyone could manipulate the Yahoo ad algorithms and search engine to establish an alibi are beyond astronomical. Unless, of course, someone at Yahoo can explain it.

Someone at Yahoo needs to explain what their search engine was up to on Christmas Eve 2002.


Where in the world are all your secrets stored?

If you’re a criminal, your secrets are stored all over the place. A clever computer forensics investigator can find them, but not necessarily easily and certainly not always where you might expect.

Because I’m a fiction writer, and I’m currently writing about these issues, I’m not going to tell all the criminals out there–or all the other mystery writers out there–every detail of what I know about this topic. Let’s just say that any programmable electronic device you use stores data that can be retrieved and studied.

Think a minute about everything in your home besides your computer that is programmable: your alarm clock, your coffee pot . . . .

Now think a minute about everything in your yard, your workplace, your car, . . . .

Add to that everything in the public spaces through which you move, and don’t forget all the surveillance cameras, ATM machines, and locked doors through which you pass by means of keycards or other electronic-access devices.

Oh, don’t forget the toll booths, cell phones, GPS devices . . . .

Credit card swipers, bank accounts . . . .

Now, think about how many of these electronic devices are on a network (LANs, WANs, and the Internet). Every network has its own logs of activity, and all these logs are stored “out there” somewhere.

Your garbage is permanent, too. Anything that goes into a landfill is probably there for longer than you will be around. Ever wonder what happens to all your recycled stuff? Who’s that guy sitting in that white van down the street when you put that recycle bin out on the curb last night?

The only thing that protects us from having all our secrets exposed is that we are only one among hundreds of millions of people in this country. If anyone wants to learn our secrets, he has to dig through a whole lot of data and other garbage.

The vastness of all this data is the biggest barrier to criminal investigation–not paper shredders and hard-drive shredders. Unless you use a confetti-type paper shredder and then burn the confetti, the cops can still piece together that draft of the ransom note you wrote. Unless you completely, physically crush your hard drives and thumb drives and all the other data discs, the cops can retrieve a substantial portion of those email messages to your crooked accountant about where to launder your money. And even if you melt your entire PC to a gooey lump, the cops can still retrieve the archived email messages on your accountant’s server at work and probably also some further evidence from the ISPs you both use.

The problem I have with computer forensics being used as evidence in a trial isn’t any of this. It’s that alarm clock, coffee pot, cable box, and even your Google searches. The records that these electronic devices store are records of everyday life. They prove nothing about crimes. So what if you set your clock to wake you up at 6:30 every morning, but on the morning of the murder you get out of bed before it goes off? Maybe you often get up before the alarm goes off. So what if the coffee pot automatically started perking away as usual at 6:30 on the morning of the murder, but you forgot to put coffee in the basket the night before? Maybe you forget to do this all the time. So what if you rented on-demand sex movies for the first time in your life after your wife disappeared? Maybe you were trying to distract yourself from the horror of your situation.

So what if you searched for pornography online before or after a crime occurred? Millions of people do this every day. They just don’t happen to be caught up in a crime.

I have heard far too much testimony in murder trials about web search activity as if it were evidence of a crime. This is not evidence. At most, it helps investigators to piece together a picture of your behavior at certain times. This picture may or may not be suggestive of aberrant psychology. For instance, as far as I can tell, Neil Entwistle often searched the web for sex-related sites months, if not years, before the shooting of his wife and daughter. I’m not sure whether there was testimony at his trial that he sat down at the computer and searched for an escort service while his wife and daughter’s bodies were lying in his bed. If so, this is definitely evidence. But if these sorts of searches were dated before the tragedy, then they are not evidence, just clues for investigators.

Jurors should never be asked to evaluate Internet search behavior patterns as evidence, unless the searches can be shown to be illegal in themselves. (At least, that’s the opinion of this jurors.)

What I’m Concerned About: Jurors, Jury Service, and Why No One Wants to Serve

Before I plunge into the fray about computer forensics and the misuse of science in courtrooms, I think I need to restate my interests and focus:

I want Americans to understand the importance of the jury system as an instrument of justice. Justice only occurs when the truly guilty party is convicted by a jury of his or her peers. Justice does not occur when the cops arrest a suspect and take him off the streets. Justice does not occur when a prosecutor and/or grand jury bring charges against a suspect. Justice does not occur when a judge binds a defendant over for trial. And justice certainly does not occur when a judge admits dubious information into a trial as evidence, or a prosecutor presents dubious information to a jury as evidence. Justice does not occur when a defense attorney fails to present a case that covers all the issues the jury will be asked to consider or when a defense attorney does not understand the nature of the scientific evidence.

Justice does not occur when one innocent person is convicted for fear that a guilty person will go free. I have no dog in any of the fights over whether or not certain people did or did not commit a famous, heinous crime.

Computer Forensics–Part I, Valid or not?

In a criminal trial, the lawyers submit all items of evidence, including anticipated testimony, to the judge for approval, before the jury gets to hear it and “find the facts.” A good judge excludes some items, because they are of questionable veracity, not probative, unduly prejudicial, and so on.

All sorts of activities are recorded on all sorts of electronic equipment, all of which seems to fall under the rubric of computer-forensics evidence. I’m not talking only about PCs; I’m talking about all sorts of electronic records. I’m convinced that much of the computer-forensics evidence that makes it into a trial should be excluded, because it is not probative (to-the-point, if you will, and incriminating) and/or it’s prejudicial. In other words, I feel that judges should exclude a lot of computer-related evidence. (I’ll supply specific examples in a minute.)

Some electronic records are–obviously–evidence of crime, though. Such records include actual communications which are themselves crimes, such as bank fraud, wire fraud, mail fraud, and conspiracy. If a murderer emails his accomplice about when they will meet after the murder–that’s evidence. If a murderer tells a friend she wants to buy a gun out of state so that she doesn’t have to wait as long for the background check as she would if she were buying it in her home state, that’s evidence, too.

That sort of electronic communication may, in and of itself, be criminal activity. It certainly should be presented to a jury. One reason it should be presented is that a jury can decide the facts for themselves based on the evidence. They don’t need an expert witness to read the email message to them or to tell them what to think about it.

A jury can also decide whether such a communication is evidence of some other crime. A jury may decide it is proof that certain facts alleged by the prosecution are true. The problem is, some evidence is so technical that only experts can evaluate it. A good deal of computer forensics falls under this heading, and so the jury is unable to evaluate it.

(I hate how wordy you have to get when you’re talking about the law. Let’s see if I can say this is human terms.)

A jury is called “the finder of fact.” That means they weigh the evidence and evaluate it. They listen to witnesses and decide if they’re telling the truth. They don’t have to believe every witness simply because the judge permitted him to testify. The judge’s admission of the testimony isn’t “vouching” for the witness.

A jury observes the visual evidence, too, and makes up their own minds about what it means. They don’t have to believe that a certain knife is the murder weapon, for instance, simply because the judge admitted it into evidence.

They also read the email messages or bank statements or word-processed documents or spreadsheets or whatever other electronic records and decide what they mean. For example, the jury can decide whether or not the gun the defendant ordered off of eBay is the murder weapon or not.

But some of the computer-forensics data presented to a jury is meaningless to jurors unless an expert interprets it. I have a problem with this sort of “evidence,” because an expert’s interpretation of something is only as good as the expert’s expertise. And as far as I’m concerned, current computer-forensics experts are not experts in interpretation. They are only experts in retrieving obscure data from obscure and damaged media. (I hope I’ve expressed this distinction clearly, because it is a critical distinction.)

Another problem with computer-forensic experts’ testimony is that defense attorneys have no expertise in cross-examining them. Defense attorneys rarely ask the right questions about the integrity of the retrieved data and the methodologies used.

(I’ve heard a few pointed questions, but only a few. For example, I heard one defense attorney ask the expert whether he was using the latest version available of his analytical software. The expert admitted he was not. But the attorney left it at that–as if a layperson juror would understand how much that compromises the results of the computer-forensic investigation. The lawyer should have hammered him on this and then brought on a defense expert to list exactly the sorts of flaws the old software might produce. Better yet, the defense ought to have sought to have the judge exclude the data from the trial on this basis.)

Some of the computer-forensics data that many, many judges admit into trials aren’t evidence of crime–they are simply clues to the crime, which the criminal investigators used in the investigation. And we all know that everything that comes out in an investigation, isn’t admitted into court, because it isn’t relevant. This is my biggest complaint with computer-forensics data as evidence.

The following sorts of records may give investigators clues to follow, but they should not be treated as actual evidence of crime–just of suspicious behavior:

1) Searching the web for crime-related information (or everyone who reads this blog would be under suspicion)
2) Searching the web for sexual information
3) Searching the web for last-minute travel plans
4) Searching the web or other online directories for legal assistance or information
5) Records of GPS locations (from GPS monitors or from cell phones, etc.)–unless, of course, the records show that the suspect was at the scene of the crime precisely when the crime occurred
6) Security camera videos showing a suspect in a public space in the general vicinity of the crime, but doing nothing criminal or suspicious

Yes, these are great clues that can lead investigators to real, solid evidence that can be presented in court. But, since there is also an innocent explanation for all of these records, I don’t think they should make it past the judge and into court.

Unfortunately, far too much of this sort of information (which is subject to widely varying interpretations) makes it into court. For example, in almost every recent murder trial the prosecution brought on a computer-forensics expert to testify to the defendant’s web surfing habits, which almost always included porn searches, crime information, and travel plans. Except for the porn, which appalls me because it is a form of violence against women and children and sometimes animals, I am constantly surfing for crime information and travel information. If a person does this often and then a crime occurs in her circle of friends or neighbors, suddenly the surf pattern looks suspicious. It’s taken out of context. I am convinced that this is the case for Neil Entwistle–guilty or not, his porn and escort searches are completely irrelevant and prejudicial and should never have made it into the trial.

Another sort of computer-forensics testimony occasionally makes it into a trial. It’s rare. But it’s terrifically incriminating–if you can believe it. This testimony is related to forensic linguistics (which is actually something I approve of, as long as it is interpreted by a wise expert), but what I’m complaining about is actually a sort of pseudo-linguistics, a junk linguistics, if you will.

I’m referring to the analysis of computer keystrokes and “individual web-search preferences” when more than one person has access to a computer, whether at home or in the office or in public.

The most egregious use of this crystal-ball-gazing, computer voodoo was in the Scott Peterson trial. A computer expert testified that he could tell that only Peterson was on the family computer on the morning of the murder and that the victim, Lacy Peterson, was not on the computer at that time, even though there was a click-through to an ad for an umbrella stand with a daisy pattern on it (daisy, being a favorite emblem of Lacy’s). The expert claimed he could tell that the click-through was not Lacy’s. That meant it had to be Scott who was clicking on the ad.

An aside: What if the expert was right? What if Scott did click on the umbrella stand? It was Christmas Eve. He might have been thinking about buying a present for his wife. This would tend to exonerate Peterson, wouldn’t it?

However, the prosecution used this testimony as evidence of premeditation. They even claimed Peterson clicked on the ad just to make everyone think that Lacy was still alive at the time. Now, if that is true, Scott Peterson very nearly devised an incredibly clever crime. How did he know that a Google ad would pop up next to a search for the currents in San Francisco Bay? Or sturgeon? Or whatever he was searching for at the time? Google claims that they display ads based on the keywords in the search. Hmm.

This kind of testimony prejudices a jury against a defendant unfairly. The judge doesn’t understand it, so he admits it into the trial rather than going out on a limb and doubting an expert. The defense attorney doesn’t know how to cross-examine an expert who makes such claims. Unless the jury includes someone who really understands computers, the jury won’t question it, either.

To be continued . . . .



Computer Forensics–What Can They Really Find?

You Can Run, But Not Hide

In the next few days, I’ll be exploring the domain of computer forensics. Here are a few of the topics I intend to cover (based on my professional work in computing, beginning in 1980):

  • Where in the world are the records stored? (It’s not only on PC hard drives.)

  • Why can’t you simply delete everything incriminating?

  • What electronic devices in addition to computers can store records about their users?

  • Why do I say that the data recovered by computer forensics are clues but not evidence?

Joshua Rosa, Youth Minister, Guilty of First Degree Murder

As I’m handling my email today, I’m listening to the verdict in the Joshua Rosa murder trial. This is another case in which I predicted a guilty verdict because the defense relied on reasonable doubt.

I wish someone would listen to me about this. I’m a writer. I’m a Ph.D. in English Language and Literature. I’ve listened to, written, and read arguments all my life (OK, since high school when I was on the debate team). I know what works and what doesn’t.

The rhetoric of a criminal trial requires the defense to be proactive and affirmative.

If you argue nothing but reasonable doubt, you will lose the debate. The only people who will applaud you for your excellent defense are other defense attorneys.

In this case, the defense chose to gloss over a few suspicious circumstances and instead to rely on the inadequacy of the prosecutions’ proof. Worse yet, they didn’t put the defendant on the stand to explain the suspicious circumstances.

After the verdict and sentence, the convicted Rosa made a statement in court that sounded to me like the statement of an innocent man. Yet even he said that he knew certain things sounded “suspicious.” So, why didn’t he testify? Probably because he lied to the police and for some culpable reason. Let’s assume he’s really innocent of murder for a minute. Why would he have lied to the police? Maybe he was somehow involved in something he’s ashamed of. That would help explain why he didn’t testify. Maybe his lawyers told him that he would have to admit his lies and his culpabilities on the stand and then endure a tough cross-examination that would just make him seem all the more suspicious. Maybe he thought that telling the truth after telling lies is like trying to put toothpaste back in the tube.

But look what happened? He was convicted of murder and the life sentence was mandatory–when he could have been convicted merely of manslaughter. Then the judge would have had discretion in the sentencing.

Here’s the case in brief: Rosa ran from a park known as a venue for vice and was confronted by citizens. He told them there was “a kid” who was hurt in the park. It turned out to be a young boy who was dead, his jeans pulled down, but not his undershorts–a pair of shiny, athletic boxer shorts. Rosa appeared panicked. He had blood on his clothes. The citizens accused him of committing the crime. The cops questioned him. He made inconsistent statements. The cops found in his pockets: a pair of bloody white gloves, a pair of nail clippers, and car keys.

Yes, that sounds pretty suspicious.

On the other hand, several things stand out as atypical of a guilty person. For one thing, he didn’t have to tell anyone why he was running out of the park, as he did. In fact, he could have run further into the park, into a heavily wooded area, and then escaped unseen. Instead, he ran toward a heavily trafficed street. Then, too, the contents of his pockets don’t sound like “a smoking gun.” I never heard of anyone taking a pair of nail clippers to a premeditated murder scene–or white gloves, for that matter.

Rosa wasn’t a typical juvenile deliquent. He had no prior arrests (although apparently the victim had been arrested for shoplifting–a rather typical, teenage stunt). He was a church-goer, member of ROTC, college student, and youth minister (something which the TV commentators find suggestive of sexual perversion–what is wrong with this country?)

The defense pointed out these and many, many other inadequacies in the prosecution’s case: the most glaring was the lack of Rosa’s DNA on the victim, even though there had been a violent struggle. They presented credible evidence that there may have been more than one attacker. They convinced me that Rosa often carried those white gloves for legitimate purposes and that he used them to wipe blood from the victim’s face.

But there were several glaring “suspicions” that the defense tried to ignore. This must be something they learn in law school: “stress the flaws in the competition’s case; gloss over the flaws in yours; the jury will be too stupid to notice and they’ll have to admit there’s reasonable doubt.”

What did the defense fail to explain?

First, Rosa claimed to the police (not in court) that he had been jogging in the park earlier and lost his keys there. Then, when he went back to look for the keys, he found the body. Where did he find the keys? Why did he have them in his pocket when the police questioned him? I even heard a commentator say, “Who goes jogging with keys and a nail clipper in his pocket?” (Someone very near and dear to me, for one.)

Second, he had spent time with the victim earlier in the day. Yet Rosa’s mother claimed that her son did not know the victim very well. She sounded as if she was trying to minimize the relationship of the two, because she knew it sounded suspicious. This is a very sad thing. I don’t think the defense attorney should have put her on the stand. It put her in an impossible situation.

Apparently, the most suspicious thing to most people was those white gloves. The defense put on two witnesses to the fact that in his youth ministry and ROTC Rosa used white gloves both for ceremonial purposes and for doing pantomimes in black light. They indicated that these activities required regular practice and that Rosa would have the gloves with him during practice sessions.

Maybe I’m gullible, but I bought this explanation. It even made me feel very sorry for Rosa, whether or not he was guilty. It seems like such an old-fashioned, naive behavior to wear white gloves for pantomimes in church services. In fact, this convinced me that if he was the killer, it was most likely accidental or manslaughter.

But the only person who could have explained the presence of the white gloves in his pocket that evening was Rosa himself–and he did not testify.

Frankly, I suspect that the jury associated pantomimes with those hideous mimes that used to hang out on beaches and street corners in the ’70s. In other words, they associated the white gloves with sexual perversion. And they put that together with the jeans being pulled down.

The defense ought to have anticipated this. By not talking about it, they condemned their client.

What would I have done? I would have put the defendant on the stand. I would have told him to tell the truth, no matter how hideous or shameful it was. He would have to admit he lied to the police, because he was scared. He lied because the truth, he knew, would make him sound guilty. He didn’t want to be arrested for murder.

If this were a novel, I would write a story like this:

Rosa was naive and immature. His youth ministry was a retreat from the world of grownups, which he was subconciously reluctant to enter. His best friends were much younger than he. He was also trying to bulk up and look older, taking supplements, learning karate.

On the afternoon in question, Rosa invited the victim to his house to play video games. They decided they wanted to practice some karate moves but knew that the victim’s father didn’t like to see the older, larger Rosa “fighting” with his son, so they made an appointment to meet later in the park. The victim put on shiny boxer shorts under his jeans, told his family he was riding his bike to a friend’s house, and then went to the park. At the park, he took off his jeans, because you can’t do karate kicks in jeans. Rosa and he made some moves. In the process, Rosa lost his keys. He didn’t realize it until they parted company.

He went home. The victim started to put his jeans back on over the shorts. As soon as Rosa was gone, an attacker or attackers show up. They struggle. Maybe it was a couple of drunks who thought it would be funny to keep pulling the kid’s jeans off of him. Things got out of hand. The kid is throttled. The drunks don’t realize he’s choking until it’s too late. They run away into the woods.

Rosa returns looking for his keys and finds the victim. He’s shocked and confused. He was fine when he left. Now it looks like his karate session is what got out of hand. He knows that if he admits to the assignation with the victim earlier he will be accused of hurting him.

I know law professors must warn law students about ever letting a defendant admit to something like this, because it would be malpractice if the client was convicted. You can’t be sued for malpractice if you keep the defendant off the stand and he’s convicted.

I’m sure that lawyers are as worried about frivolous malpractice suits as doctors are: their friends the tort lawyers are always there, lurking in the shadows.

I realize this sounds cynical and bitter. But I am convinced that innocent people are convicted wrongfully because of this idiotic “reasonable doubt” defense strategy. Don’t they study Blackstone’s dictum in law school: “better that ten guilty persons escape than that one innocent suffer”? I think defense attorneys are overcautious in their own defens
e of their reputations and are unwilling to take risks, even when they believe their clients to be innocent.

Why are there so many editors and so few books that are fun to read?

The jury is still out on this mystery.

In the publishing industry it’s now de rigueur for writers to have a blog. The marketing geniuses at the publishing houses think that readers want to read a daily post from their favorite novelists about their spouses, pets, the publishing industry, their next book signing . . . .

That’s nonsense, of course. But I have found great value in blogging. It is teaching me to write it right the first time, like a journalist, instead of relying on the miracle of word-processing to permit me to endlessly revise my work.

Blogging has another great advantage: no editors. There’s no time to pass my blog posts by a nitpicker.

Since I’m in the process of seeking an agent and publisher, I’ve had to “listen” to a lot of criticism of my writing lately. After years of being told to join a writers’ critique group, to join writer’s organizations to “learn from the pros,” to hire a freelance editor to read everything, I’ve finally realized that this is a conspiracy of non-writers to make a living off of writers.

I know how to write. I know what I like to read, and I’m not so arrogant as to think I’m the only person smart enough to like to read good stuff (so there are other readers out there who will like what I write).

BTW: The most-viewed post on this blog is the one about computer forensics and junk science. With that as a hint at what you are interested in reading, I plan to do some further research and post more on this topic soon.

What do jurors really think about a defendant’s failure to testify?

Do jurors in a criminal trial want to hear from the defendant?

The media seems to think that jurors always want to hear from criminal defendants. Lawyers seem to think that recorded interviews and other recordings of a defendant are sufficient without further defendant testimony: prosecutors seem to think that taped phone calls and police interviews are sufficient to damn a defendant, and defense attorneys seem to think that those same sorts of recordings are sufficient to present the defendant’s side of the case. Odd, isn’t it? How could one set of tapes accomplish two such different goals?

So, who is right? Is the media right that jurors want defendants to testify? Are lawyers right that defendants are better off staying off the stand and instead allowing their recorded statements to speak for them?

What do jurors really want? As a juror, I not only did not want the defendant to testify, I didn’t mind when the defendant disappeared from the courtroom. I took the judge at her word that he was exercising his right not to be present. It never crossed my mind or the minds of any of my fellow jurors that the defendant had skipped bail. Frankly, the crimes of which he was accused seemed so awful that I couldn’t imagine that he would be out on bail. And I thought it was a blessing for the victim that she didn’t have to confront him in court.

Before my jury experience, though, I imagined that an innocent defendant would want to testify. I thought that in such a situation I would want to defend myself by testifying.

However, from the moment a juror steps into the jury box in a real courtroom, all preconceptions vanish. I believe that in most trials–not high profile trials–jurors take the judge at his or her word. They abandon preconceptions. They listen to both sides objectively. They don’t expect or require a defendant to testify.

That said, I think that innocent defendants need to be very skeptical of what defense attorneys tell them about testifying. The decision to testify or not to testify has to be based on a very complex set of factors. And, unfortunately, a defendant is going to have to work through the problem alone. A defense attorney would be liable to malpractice claims if he or she advised a defendant to take the stand. A judge is prohibited from influencing the defendant. And the prosecution almost always wants a crack at cross-examining the defendant.

The question a defendant needs to ask himself is whether the jury (after hearing both sides of the case) is still bound to have questions about him, which left unanswered will incriminate him. As I’ve said before, a jury will remain skeptical about a prosecution case. This skepticism leads to some reasonable doubts. I think there are doubts in every case about the investigation and prosecution evidence. It is difficult to conceive of a prosecution case that is perfect. But, if the defense leaves certain issues dangling, if the defense fails to explain something that seems incriminating, the jury will tend to side with the prosecution. In such a situation, if only the defendant can explain them, I think the defendant has to testify.

It seems to me that this is rather unfair to the average, innocent defendant. It takes considerable analytical skills to be able to determine if issues remain in a case that will tend to lead the jury to convict.

I’ll use the Scott Peterson case as an example, because it is so well known. I think the defense left the following questions unanswered:

Was the defendant really in love with Amber Fry or was she simply a sexual outlet?
Why did the defendant continue to communicate with Amber Fry after the victim went missing? And why did he try to conceal his marriage from Amber even during the media frenzy?
Why did the defendant drive so far on Christmas Eve to go fishing for the first time in his new boat, rather than finding a nearby lake?
Why did the defendant make his cement boat anchor at his business garage, rather than at home?
Did his employer know he was storing the boat in business-leased space, and why didn’t he store it at home?
Why did the defendant lie to his neighbor about what he was doing all day during his initial search for his wife?

I can think of reasonable answers to all these questions, but they are all questions that only Scott Peterson himself could have answered. Because he never took the stand, the jury was left with the belief that Amber Fry was a motive for murder and the boat was so suspicious that it had to be part of a premeditated murder plot. I can’t think of a single reason why Peterson didn’t testify, except that he received legal advice against it.

This comes back to the problem with “reasonable doubt” as a defense. A juror who has questions about a prosecution case will not consider those questions to be cause for reasonable doubt if she also can’t think of an alternative reasonable explanation for a defendant’s behavior.

If I were an innocent defendant–as, of course, I would be–I would try to put myself in the jury’s shoes. I would ask myself what evidence against me has not been explained away by my defense counsel. Then, even as nasty as the truth may be, I would want to answer those questions for the jury. Scott Peterson seems not to have wanted to admit that he was a philanderer, a lifelong womanizer, who wanted to have a sexual relationship with Amber Fry even after his wife disappeared. That’s pretty lousy and shows him to be a shallow sensualist. But at least he might have convinced one person on his jury that he wasn’t proven guilty of a hideous crime. Or maybe not. But even then he wouldn’t be any worse off than he is now.

Forensic Linguistics, Anthrax, and Steven Hatfill

The June 30, 2008 Wall Street Journal editorial, “The Anthrax Fiasco,” vilifies the FBI and Justice Department for incorrectly targeting Steven Hatfill (a former military scientist) as the 2001 anthrax-terrorist. I’ve known all along that Hatfill was one of the least likely culprits. And I was not alone. During the anthrax panic I subscribed to a forensic linguistics mailing list on which several academic linguists expressed opinions that the letters were not written by a native English speaker, were possibly written by a native Arabic speaker, and showed signs of having originated in Great Britain. An FBI document expert on the list posted several responses to these linguists’ notes in which he indicated he would make sure that these comments were passed along to the agents investigating the case. I also emailed the FBI expert privately, off list, in order to suggest that certain aspects of the letters looked to me as if at some point they had been prepared for and then transmitted on a TTY (teletype) device. His response to my email indicated that he thought my insights had merit.

It looks as if the government settled Hatfill’s lawsuit before it reached court, probably to protect the investigating agents who ignored the linguists’ advice.

The issue of forensic linguistics in crime detection and the courtroom deserves a post of its own. Recently, I heard a legal commentator call forensic linguistics “junk science.” I disagree. It isn’t junk, even though it isn’t science either. It’s an analytical methodology.