Top Ten Science Abuses in Court–Make that Top 14

Each of these abuses of science in the courtroom deserves a post of its own. There’s more to come.


1. State Lab Incompetence and Abuse


2. Statistics

3. “Reasonable Degree of Scientific Certainty”


4. “Absence of Evidence is Not Evidence of Absence”


5. “Cannot Be Excluded as a Donor”


6. Internet Searches


7. Hair and Fiber Analysis


8. Psychological Criminal Profiles


9. Fingerprint Analysis


10. Handwriting Analysis


OK. It’s not a Top Ten List if there are fourteen items on it. But the following four “sciences” deserve some recognition as runners-up. The first three, like handwriting analysis, yield interesting deductions, but the evidence ought to be excluded from trials:


11. Blood Spatter Analysis


12. Blood Pattern Transfer


13. Gunshot Residue


14. Ad Hoc or “Instant Invention” of New Techniques


 


To be continued and explained . . . .

A Man’s Home is His Castle

Right now CNN is televising a trial that illustrates what’s wrong with American family law: the murder trial of Marc Benayer, an elderly man with dementia. (This is not a problem with firearms, as anchor Jami Floyd contends.)


All across this country, millions of families are carrying the heavy burden of very elderly relatives with dementia. The law provides no relief. In fact, it compounds the problem.


In the past (and I mean as far back as Adam and Eve), the origin of family law, people generally either lived to a healthy old age or died young before their minds failed. Age used to bring wisdom. People respected their elders because of their life-experience. Rare indeed was the elderly relative “in his dotage” or “in his second childhood.” Society treated such elderly people as children: the extended family lived with their elders, and family decisions were made by the “head of the household,” that is, the person who “brought home the bacon.” In other words, in the past the law was not concerned with the irresponsible, erratic behavior of the elderly with dementia. It wasn’t a problem. (I’m purposely using the term “dementia,” because most doctors claim Alzheimer’s can’t be diagnosed until a post-mortem examination of the brain is made. In addition, there are many forms of dementia, not only Alzheimer’s.)


In general, American law requires a family member to prove that an elderly parent or relative is either “a danger to himself or to others” before the family is granted custody. An elderly person can live in filth and squalor inside his own home, can fail to pay his bills or taxes, can eat nothing but candy and cat food, can refuse to see a doctor, and can then die in his home–leaving a child or nephew to find the bloated corpse, to pay the overdue bills, to clean out the house, and to pay for the burial of the corpse. If the child tries to intervene before it’s too late, he or she must take the elderly person to court, at great expense, and then prove that their loved one is not only engaging in irresponsible, self-destructive behavior but is also suicidal or homicidal–like Mr. Benayer. The law prohibits a judge from taking away an elderly person’s rights under any circumstances but those.


The problem is: there is no way to prove such a person is suicidal or homicidal. Even a person with dementia will lie when asked if he wants to kill himself or someone else. Would Mr. Benayer have done that? Even after the fact he claims he didn’t kill or hurt anyone.


Another type of behavior that the law condones is elderly drivers. The elderly aren’t even required to take a test proving they have decent reflexes. As a result, many auto accidents result–the elderly are almost as bad drivers as teenagers.


A related problem is that of care for schizophrenics. Because of a series of Supreme Court decisions, a schizophrenic can only be hospitalized involuntarily for a short period of time, during which he can be administered medication forcibly. Once the medication works, he must be permitted to leave the hospital and does not have to continue to take medication. As I understand it, that was the case for Naveed Haq, the Jewish Center terrorist.


In fact, no one can be forcibly treated for alcoholism or drug abuse, no matter how extreme the problem or how many people are endangered by the risky behavior. What you do inside the four walls of your home–even do to other people–is legally your business and no one else’s. Men can torture their wives and children. Mothers can torture their children. Parents can neglect their children.


I realize that the government taking away of a person’s rights is a very serious matter. The government should be a citizen’s servant, not its master. And I know that laws of custody are easily subject to abuse. But the cost in money and heartache of family members with mental problems is enormous.


The American system of family law and family courts not only doesn’t help, it makes it all worse.

(I could add that a woman’s home is not her castle, but I’ll leave that for another post.)

What Was Wrong with the Latest O.J. Trial?

Listening to parts of the closing arguments in the latest trial of O.J. Simpson I realized how many similarities there were with the trial in which I served as a juror: repugnant defendants (excluding C.J. Stewart who, in my opinion, is completely innocent), over-zealous prosecutors, prosecutorial judges, and definitions of certain aspects of the law, especially kidnapping and criminal intent.


Repugnant: O.J. versus “My” Defendant


Sitting in the jury box while a repugnant criminal is on trial isn’t easy. It’s even more difficult when you are torn by your fear of this person being “at large” and your conviction that he did not commit the crimes of which he is accused. You know you’re going to have vote “not guilty” (at least on some charges), even though you suspect there’s more evil beneath the surface, which the law is unable to address. It is beyond stressful.


Over-zealous Prosecutors


Prosecutors too often over-charge, pile charge on top of charge, either in hopes that one charge will stick if the others fail, or to punish a defendant for crimes that can’t be proven, or, perhaps, for the notoriety. In O.J.’s case, I was appalled to hear the prosecutors claim that the jury would “write the final chapter” in O. J. Simpson’s story.


Prosecutorial Judges


Judge Glass has showed her temper throughout the trial. On one hand, I would prefer for a judge to be uniformly calm. On the other hand, I also wonder why a judge can say she feels like letting her head spin around and fire spew from her mouth but O. J. Simpson isn’t allowed to yell at people who have “stolen” his “stuff,” such as photos of his deceased mother and daughter.


It’s just my opinion, but I thought many of Judge Glass’s decisions were pro-prosecution. In the case in which I served as a juror, after the verdict our female judge as much as told us we were wrong to acquit the defendant of kidnapping charges.


Legal Issues


I’ve written before about the abuse of kidnapping laws as a means of stiffening sentences for other, lesser crimes. This is wrong. I don’t care whether O. J. said, “No one leaves,” or “Don’t let anyone leave here,” or anything of that kind. I can think of a dozen situations in which a person might say that completely innocently. When you are arguing with someone, the last thing you want is your “opponent” to just walk out. They even say this in Congress.


Another issue that troubles me is “intent.” Apparently most crimes involve the concept of “intent.” In the trial in which I served as juror, the issue of the intent to commit kidnapping was an important issue. The judge’s instructions said that the defendant had to “knowingly” commit kidnapping. Let’s face it: if you were the best man at a wedding in a day or two, would you plan and intend to kidnap someone and then hang around for the wedding?


I could go on and on. But I’m about to take a week’s hiatus from this blog. The jury will reach a verdict while I’m away from this keyboard. I will revisit these issues after the verdict.


Good luck to the jury.

Call for Illinois Constitutional Convention on the Ballot–IL Courts Need Reforms

Jesse White, Illinois Secretary of State, recently sent the voters an explanation of the upcoming vote on the “Proposed Call for a State of Illinois Constitutional Convention.” The wording of the ballot states in part: “In 1988 the electors rejected the call for a constitutional convention, with 75% voting against calling a convention….” I take this as the State of Illinois’ way of warning voters not to take advantage of this once-in-twenty-years chance to make productive changes at a time when the state’s coffers are almost dry because of government mismanagement.


I had planned to vote in favor of the call, because I would like to see significant changes in the criminal statutes of the state. If Mr. White had not said the following was a reason to vote against the call, I probably would have thrown his brochure in the trash and thought nothing more about it. But here’s what he said (and it should raise the hackles of every sentient being in Illinois):


“The convention could be dominated by current controversial issues like abortion, capital punishment, gay marriage, gun control . . . .”


And this occurs in a paragraph headed “Influence of Special Interests,” as if anyone who has an opinion about these issues is in the pay of some industry or lobby group.


I would like to see the following changes made to the way criminal statutes are administered and criminal cases tried in Illinois courts:


1. Capital Punishment


Either capital punishment should be abolished in Illinois or the rules for juries in capital cases should be changed. There should be two separate juries and two separate trials in a capital case: in the guilt-phase trial, jurors should be permitted to serve who, like me, oppose the death penalty. A “death-qualified jury” is predisposed to find a defendant guilty. Nowhere in the U.S. has this been more apparent than in Illinois. (Remember that in 2003, Gov. George Ryan [now in jail himself] commuted 156 death sentences and pardoned 4 death row inmates because they were manifestly wrongly convicted. See the BBC for the story: http://news.bbc.co.uk/1/hi/world/americas/2649125.stm). If a defendant is found guilty by a fair jury, then a separate trial should be conducted in which the jury should be “death qualified.” There can be no argument against this idea based on cost to the taxpayers. Capital punishment is already outrageously expensive. If anything, this would reduce the number of people condemned to death and thus reduce the cost of maintaining them on death row for decades during the appeals process.


2. Decouple Kidnapping from Other Violent Crimes


Currently, prosecutors and judges in Illinois (and elsewhere) are abusing the Illinois kidnapping statutes by piling kidnapping charges onto other criminal charges in order to increase the potential sentence for the underlying crime. This is un-American. It also ought to be unconstitutional in Illinois.


In America, state legislators write the laws; the laws specify the punishments for crimes.  Judges and prosecutors ought not to be permitted to circumvent the people’s representatives by piling charges on other charges. So, I would like to see a constitutional amendment or clause that states that the crime of kidnapping may never be added to an underlying violent crime; I would only permit kidnapping to be the underlying crime to which other violent crime charges might be added. I would also require legislators to define kidnapping such that the act of kidnapping is the clear primary intent of the criminal. Then, crimes committed after the abduction occurred could be added to the kidnapping charges. (I don’t know why the term “abduction” isn’t used in the current statutes, anyway.) For example, the following crimes might be added to a kidnapping charge: murder, rape, torture, involuntary servitude, human trafficking, and robbery.


Kidnapping is abduction. Kidnapping is not restraint. Many violent crimes involve restraint by definition. Rape always involves restraint. But kidnapping for the purpose of rape is very different from restraint for the purpose of rape. You can’t rape someone without restraining the person.


In addition, I would make parental or custodial kidnapping of a minor a separate crime–clearly and unequivocally–unless the kidnapping is followed by another violent crime against the minor, including not only murder, rape, etc., but also any form of abuse or neglect. I’m not seeking to condone parental kidnapping, only to acknowledge that when parents take their children outside the jurisdiction of a family court, it isn’t with the “intent” of kidnapping, but with the intent of taking custody of their child.


3. Judges Instructions


Judges’ instructions to the jury should correctly state the law, as written by the legislature. Judges’ instructions should be required to state the exact wording of the applicable statute without paraphrasing, rewording, or deleting words or phrases–or even punctuation.


4. Jury Education


Before serving on a jury in Illinois, jurors are presented with a 15-minute videotape (about 20 years old) in which the process is explained briefly. The state needs to provide far more information. Juror’s rights and responsibilities need to be spelled out. Jurors need an unfettered way of communicating their concerns about jury deliberations to the judge, and if they have concerns about the judge then there ought to be another authority with whom they can communicate.


In fact, I’d like to see a Juror’s Bill of Rights in the Illinois Constitution. How about a right to privacy during voir dire? How about a right to nullify an unjust law or unjust prosecution? How about a right to adequate compensation during trials that last longer than a week? How about a right to a secret verdict ballot? How about a requirement that jurors cannot speak to the media after a trial about any fellow juror?


On the topic of a secret ballot: In many trials after the verdict is read aloud in the court, the jury is polled to verify that they all agree to the verdict. That isn’t a problem. The problem is that during deliberations, peer pressure is very great on jurors who do not agree with the majority. A secret ballot would give such jurors a modicum of security from undue pressure.


***


I have decided now that a constitutional convention isn’t the best way to address these issues, although it seems to me the issues of capital punishment and juror’s rights might be constitutional in nature.

The electors to the convention would not be chosen by the people. The cost would be close to $80 million. Much of what happened in the court when I served as a juror should be unconstitutional, but amendments to the constitution would fix this and a whole new constitution surely would only make matters worse.

I’m voting NO on the Illinois Constitutional Convention.