More Mysterious than the Verdict in FL v Mendez

Because of recent malicious spam comments, I’m forced to shut off comments
for awhile. As a result, I’m also unable to post several comments to recent
posts—but the comments deserve a response.

One comment concerned the “causes of Columbine” and school
shootings.

Response: I can’t Google the topics you suggested, because
to do so would cause Google to do two things, neither of which I wish to have
them do: 1) Google would add these search terms to my personal search
history—and as a result I would be forever labeled as someone interested in
child pornography; 2) various law enforcement and security agencies would start
monitoring this blog. I’ve already had the second of these problems happen when
I made an off-hand remark about someone who was in the military.

Two comments concerned the trial of Juan Mendez, Jr.

Response: One commenter was convinced of Mendez’s guilt but expected the jury
to find him not guilty, because the police investigation was shoddy and the
prosecution’s case was weak. One commenter was convinced of Mendez’s innocence
and considered the verdict to be racist. I disagree with both of these comments:
the prosecution’s case seemed inadequate because of the shoddy investigation,
but my instincts tell me he did it; and I see no evidence of racism in the
investigation, prosecution, or jury verdict. I think the verdict resulted from
moral outrage at the viciousness of the crime and the abuse Mendez inflicted on
his wife.

Juan Mendez, Jr., Guilty on Both Counts

The trial of Juan Mendez, Jr., for the brutal murder of his estranged wife and mother-in-law seems to have ended swiftly today when the jury spent less than 2 hours in deliberations before finding him guilty.

Had I been a juror (of which there were oddly only six) I would have been the “hanged juror” once again, because I could not have voted guilty. I found the “ear-witnesses” completely unbelievable and the “forensic science” among the worst I have seen.

I am not a lawyer, but I have an opinion about the rhetoric of this trial: it represents the worst of legal presentations to a jury. Both the prosecution and the defense deceived the jury throughout the trial. Ultimately, the prosecution appealed to the jury’s emotions, not their minds.

I suspect it was the prosecutions’ rebuttal argument today that condemned Mendez: the prosecutor made two claims—which apparently the jury believed: 1) There is a gap of several hours in Mendez’s cell-phone usage at the time the murders occurred, and 2) the handle of the murder weapon had Mendez’s DNA on it. The problem I have with these points is that 1) the gap in phone calls was in the middle of the night when most people are asleep and not using their cell phones (and the time of death was never established), and 2) the DNA in question could have come from Mendez’s child, possibly transferred there from his mother’s hand.

Thanks to the Florida News Press, the Mendez trial was recorded and is now archived online. It makes an interesting case study in what not to say to a jury. I look forward to having some spare time this week to work on it.

But as I said earlier, I won’t shed any tears for this wife-beater as he heads to prison for life.

Lesson? Don’t answer honestly in voir dire?

The Minneapolis-St. Paul Star Tribune (11/13/09 ) reports that answering questions honestly during jury voir dire can land a potential juror in jail.

What was Judge Timothy Bloomquist thinking? Maybe he’s tired of being reelected to his post.

I have long believed that judges and state’s attorneys ought not to be elected, but, in light of what this judge did, it does make me think again. The Minnesota electorate ought not to permit judges to treat citizens who take the time to show up for jury duty so disrespectfully. I had no idea that judges were permitted to exhibit “contempt of jurors.” (But I did experience the contempt a judge had for a jury in Cook County. That’s where I learned that most trial lawyers and some judges truly resent the jury system.)

Now I’ll have to revise my quiz, “How to avoid jury duty.” The question is: what is the correct answer to the quiz question, “Can you complain about the pay and get out of jury duty?”

 

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Florida v Mendez Live Video Courtroom Drama

At the end of the day, the Mendez trial courtroom in Ft. Myers, FL, erupted in true drama: two witnesses testified in highly dramatic—and highly questionable—ways about the last moments (presumably) of victim Whitney Mendez’s life. Now the whole trial is in limbo until tomorrow morning.

I recommend the Ft. Myers www.news-press.com video archives if you didn’t see this.

This week has been an interesting court-broadcast experience. I’ve found much to admire in TruTV’s new format and much to dislike.

The Good

Since moving from NY to GA, TruTV’s In Session program has been much more informative and interesting than it was in the past, in several ways:

  1. The program extends from 9:00 a.m. ET to 3:00 a.m. ET, rather than being broken into three segments; this makes it easier for me to record, skim through, and delete.
  2. The anchors of In Session are both lawyers, but they don’t focus on their personal opinions (as some previous anchors did)—they focus on eliciting the opinions of their guests, all of whom have been providing detailed, technical commentary.
  3. The commentary is truly information—but, on the down side, the speakers are often overly dramatic, and the points could also be provided after the fact (in true journalistic form), as opposed to during live broadcast, and still be informative.

The Bad and the Ugly

On the other hand, the short-comings of commercial TV broadcasts of trials have also become apparent:

  1. Trials are interrupted at arbitrary points with lengthy, obnoxious, irrelevant commercials, including commercials for the stupid prime-time TruTV lineup.
  2. Private-citizen witnesses are broadcast nationwide, when they have no desire to become national figures.

The Florida www.news-press.com website (sponsored by a Florida newspaper chain) is also streaming the Mendez trial live. They not only do not interrupt the trial with commercials, unlike CNN they don’t even require viewers to watch three commercials before the video will play. What is even more impressive, they stream the entire trial live, and then they archive each day’s session for “On Demand” replay. This—IMHO—is the way it should be done. Commentaries should be provided after the fact and in separate “broadcast” sessions.

As they used to say when TVs had a “dial,” tune in tomorrow to see if the judge declares a mistrial in Florida v Mendez.

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Florida v Mendez—time to take a step back, I suppose

In May, a researcher at Radboud University Nijmegen reported yet another link between language and the body: people who literally take a step back are more focused and clear thinking as they “approach” problems.

The“ear-witness” testimony yesterday in the Florida trial of Juan Mendez, Jr., “gave me pause,” and I decided to step back.

  • The case: A young woman and her mother were discovered slashed and stabbed to death. A child in a highchair was found just outside their home, dehydrated after apparently having been left on the porch overnight by the killer. The young mother’s estranged husband was arrested (he was under a restraining order at the time of the murder), but a grand jury refused to indict him because physical evidence tying him to the crime was missing, in particular, DNA evidence. Several months later, after a witness came forward who claimed to have been on the phone with the young woman when someone broke into the house, the state’s attorney charged the estranged husband (Mendez) with 2nd-degree murder.

My “knee-jerk” reaction to this abusive husband was that he must be guilty. I’m always ready to throw an abuser in the slammer. (So even if Mendez didn’t do it this time, I won’t be too upset if he’s convicted and put away for life.)

But having heard some of the ear-witness testimony, I’m now stepping back and rethinking my bias. And once again I’m glad I’m not on this jury. As much as I dislike admitting it, I don’t think the witness was credible. Now, I’m going to be “keeping my fingers crossed” that powerful, definitive DNA evidence will be put before the Mendez jury.

Ear-witness Testimony

The witness in the Mendez trial was a waitress-supervisor at a local Denny’s. On the evening the crime is believed to have occurred, she was at work and claims to have received three phone calls from the victim, who worked at the Denny’s. (However, no phone records exist to prove this.) In the final call, she claims the victim said something about a restraining order and that she heard a man’s voice say something about the boy being his and he had the right to take him for the weekend. She claims she heard a scream and then the phone went dead. Shaken, she approached a table of cops and told them what she had heard; they told her to call a police station and gave her the number to call (not 911). The station has no record that she called them. Even after Mendez was arrested the first time, she did not come forward; instead she claims she was afraid and suffered from vivid nightmares of the call—each of which, I believe she said, helped her to recall more and more details of the calls. By the time she contacted the prosecutors, of course, the local news had been full of details about the crime and about Mendez.

This is very sad. She may have received phone calls from the victim. But she didn’t convince me, and I wonder if the jury feels the same. Can you imagine what it would be like to sit on that jury and feel in your gut that he did it—but not be able to point to specific, credible evidence of his guilt?

Real science, as opposed to forensic science, is teaching us that memory is slippery. If the defense brings on a credible neuroscientist, they can easily debunk this woman’s testimony.

Researchers have shown that memory is far from photographic, even in people trained to remember things. Memory is a product not only of immediate experience, but also all one’s past experiences. Memories can and are re-recorded and recorded over all the time. Hypnosis and drugs can change memories permanently.

And—relevant to the Mendez witness—dreaming is the brain’s means of dealing with experience; recurring dreams do not retrieve more-and-more-accurate memories, but instead less-accurate memories that fulfill a psychological need of the dreamer. (I refer you to the following popular science magazines for summaries of memory research: Discover, “Out of the Past,” and Science News, “The Mesmerized Mind” and the Oct. 24, 2009 issue on “Slumber Science.”)

My guess: if the witness did receive several phone calls that night in which the victim asked for help, but she ignored her, the witness’s sense of guilt produced the nightmares, which became so vivid that she finally called the police.

Women, be very, very afraid

Today a federal medical panel, the U.S. Preventative Services Task Force, declared that women do not need mammograms before the age of 50 and those over 50 need mammograms only every other year.

To give you an idea of how scary this is: the Canadians are touting this pronouncement as validation of their health-care system guidelines.

As a woman who knows both breast-cancer survivors and breast-cancer victims, I am appalled.

Let’s face it: women are the first to be thrown under the bus whenever our right to “be secure in our persons” is at issue (that’s a Constitutional right, if you missed it). Most medical research is conducted on men, not on a mix of sexes. That’s because there are so many men in prison who are willing to become guinea pigs in medical studies. It’s also because most medical researchers are men who don’t care about women’s health.

The premise of the task force’s conclusion is that “false positive” results on a mammogram are counter-productive.

Duh? Would you rather be told by your radiologist to return to the hospital for a second screening because of anomalous results—only to be told after the test that everything’s OK—or be told by your radiologist that you have a rapidly spreading form of breast cancer that could have been caught if you had only come in for a mammogram a year ago?

Maybe this is what they mean by “health-care rationing.” Maybe women are going to be the first ones to receive the ration coupons. (When mine comes in the mail, I’m going to do what most people do with jury summons—I’m going to toss it.)

Don’t hold your breath for a similar pronouncement about prostate cancer.

This is a women’s rights issue. Don’t kid yourself. If this task force recommendation is adopted by insurance companies, we’re going to have to pay for most of our mammograms, even though the tests help to keep health-care costs down.

Forensics Defined—The Public Debates Bloody Footprints

Today, as yesterday, the prosecution in the trial of Juan Mendez, Jr., (Fort Myers, FL) put “chain-of-custody” witnesses on the stand. Among these was a criminalist who detailed her findings of footprints in and around the crime scene.

TruTV’s commentators debated whether this evidence was at all damaging to the defense. Yet bloody footprints are a staple of classic detection (fictional and otherwise). Why shouldn’t they be damaging in the Mendez murder case?

Debating Facts v Opinion

I think I finally figured something out about trial lawyers: they don’t believe in facts, only opinions. Lawyers think that facts can always be disputed.

Lawyers must learn in school how to debate facts as if they were merely opinions.

In high school I, too, learned how to debate. I joined the Forensic Society (now the National Forensic League). No, it wasn’t a club for geeks who dusted their lockers for prints. It was the debate club. In that club I learned how to debate opinions—using facts to support my opinions. That’s very different from what lawyers seem to learn in school.

  • Sidebar: If you look up the word “forensics” at www.Dictionary.com, you will learn that the word still means “public debate.” It does not mean something like “the science of solving crimes,” although before long I suspect it will. The most likely reason “the science of solving crimes” has become “forensic” is that “science” was injected into the courtroom by the U. S. Supreme Court in 1993 in Daubert v Merrill. In that decision the Supremes attempted to remove the possibility of “junk science” creeping into evidence. I think they actually did something else. It’s the “law of unintended consequences” at work again.

Forensics in Court

The Supremes attempted to interject scientific facts into the system—with the best of intentions.

Guilt or innocence is fact. Unfortunately, trial lawyers treat the issue of guilt or innocence as if it were an opinion, not a fact.

All that can legitimately be debated in court is the validity of the evidence of guilt or innocence.

What most of us think of as forensic science is not science: it is craft. I’m not going to call it junk, because much of it is based on interesting and significant phenomena, which can be used by detectives to track down the bad guys—such as bloody footprints.

Forensic-science evidence is only as good as the expert witness who interprets it, though. Interpretation is an art, not a science. (I would have called forensic science an “art,” but that has frivolous connotations, rather like the art of writing fiction.)

Interpretation is very subjective. And some types of analytics are so subjective as to be junk science. Take “footwear-impression analysis,” for example.

The Forensic Science of Footwear-Impression

In the next few days, I expect we will hear from an expert in bloody footprints in Florida v. Mendez. This may well be someone from the FBI Lab. He—or she—will attempt to identify the maker of the shoes that the killer was wearing and to match the size with Mendez’s shoe size. It won’t really mean a thing: the identification will be evidence, but not fact and certainly not proof of anything other than someone walked through the blood of his victims.

  • Sidebar: I predict that when the expert makes a “match” he won’t say he made a match. He will say he “cannot exclude the defendant’s shoe size” as the size of the prints, and he will do so “to a reasonable degree of scientific certainty.” (Give the jurors a break!)

Unfortunately, as in the first O. J. Simpson trial, unless the shoes are unique (e.g., rare, expensive, manufactured only in the first half of 2006) and the prosecution has a photo of Mendez wearing such a pair of shoes, then the expert’s analysis will be meaningless.

Florida v Mendez

In fiction, the detectives who first investigate a bloody crime scene would “follow the bloody footprints” to the killer. (Try a Google search—it’s a staple of mystery novels.)

An abusive husband who was under a restraining order would be my first suspect. I would get a search warrant for his house and person—seize all his clothes—search his sink drains for blood evidence. If his only pair of sneakers was missing, I would ask him what happened to them; and if they were sitting in his closet, I would seize them. Wouldn’t you? Apparently the Florida cops didn’t in the Mendez case.

So, the lawyers on TruTV and the ones in court may continue to debate the meaning of the bloody footprints—whether or not the jury will care—but “footwear-impression analysis” isn’t science.  Face the facts. The only bloody footprints that count are the ones that lead directly to the murderer.

Oddly enough, in Florida v. Mendez, apparently the only place the bloody footprints led was to the porch where a toddler in a highchair spent the night outside.

I suspect these are the only bloody footprints about which the Mendez jury will deliberate.

The Mystery of Florida v. Mendez

On its first day, the newly re-launched TruTV “In Session” is broadcasting live coverage of the trial of a Florida man, Juan Mendez, Jr.,  for the second-degree murder of his estranged wife and mother-in-law in 2006.

  • Sidebar: Much as I would like to supply you with a link to an In Session blog article about the trial, it appears that TruTV has not made a smooth transition from New York to Georgia. Neither does CNN’s streaming video include coverage of the trial, but fortunately the Fort Myers news-press.com does (full, live streaming video).

TruTV’s Jean Casarez reported today that the reason this particularly gruesome murder wasn’t charged as a capital crime is that the grand jury refused to indict Mr. Mendez because the DNA evidence was unclear. As a result, the state’s attorney had to charge him with a lesser crime, second-degree murder, which does not require an indictment in Florida.

This is an interesting fact, is it not? It raises several questions for me. For one thing, lawyers like to say that prosecutors control grand juries and could probably “indict a ham sandwich.” So, this grand jury’s justifiable (IMHO) insistence on good DNA evidence must be an unusual occurrence. It would be interesting to know how often this happens.

Another question is, how many states have the same rules that Florida has concerning indictments? According to the Fifth Amendment to the U.S. Constitution, “infamous” crimes require a grand-jury indictment. But a quick Google search indicated to me that many jurisdictions rely on preliminary hearings rather than grand juries.

I immediately wondered about California and the Scott Peterson case: was Peterson indicted by a grand jury (when I compare the Peterson and Mendez cases, you will see why I wonder about this). I found a copy of the Peterson indictment online, so I assume he must have been.

This surprises me, because frankly there was no evidence (even presented in the trial) that Peterson had premeditated the murder (first-degree) or that he had even accidentally killed his wife in their home. (I don’t think Peterson’s purchase of a boat prior to the homicide is evidence of premeditation—all it shows is that he was a fisherman. And I don’t think a wrinkled kitchen rug and an indentation in a duvet cover is proof that he killed his wife in their home.)

Yet a California grand jury must have indicted Peterson for first-degree murder on this evidence, while a Florida grand jury refused to indict a man who was under a restraining order to stay away from the wife he brutally abused—and who stabbed and slashed his wife and her mother to death so violently that their home was awash in their blood and the knives he used were bent and broken.

Graham v. Florida—When incompetent kids commit violent crimes

Last Monday the Supreme Court heard oral arguments in Graham v. Florida, a case in which a juvenile (age 16) was convicted of armed robbery and sentenced to life imprisonment without parole (“L-WOP”); he now asks the court to reduce his sentence on the grounds that such a punishment for a child who commits a non-homicide crime is “cruel and unusual punishment” (an 8th Amendment right).

What are these lawyers thinking?

I’m surprised that Graham’s attorneys decided to appeal his sentence on the grounds that it constituted cruel and unusual punishment. I can only assume they scoured the Constitution for a “peg” to hang their argument on, and this was the best they could do.

But as far as I know, the Supreme Court is not confined to considering Constitutional issues. They decide case-law issues and common law issues all the time. And, it seems to me, a non-lawyer, the problem of juvenile justice is about common law, not the U.S. Constitution.

It is common law, not constitutional law, that establishes an “age of reason” for minors, before which age they cannot be held fully culpable for their acts. (The Supremes questioned Mr. Gowdy about this issue.)

The Constitution establishes legal ages only for voter rights and elected officials. The Constitution does not establish separate adult and juvenile criminal courts. The states do this.

Mental Age

The law has recognized for centuries that at an early age children do not have the reasoning capabilities of adults. In Graham v. Florida, Attorney Gowdy cited “science” which, he claimed, can’t draw a line between “maturity and immaturity.” And under questioning he also said that the human brain is believed not to be fully mature until the mid-twenties.

Unfortunately, human development is so subtle and complex that no one can yet point to a bright line between childishness and maturity.  Not only do individuals mature at different rates, but some individuals decline in old age into a “second childhood,” which the law is completely inadequate to deal with.

However, the Supremes have established 17 as the age before which an individual can commit homicide without being subjected to the death penalty. The “age of informed consent” has been set by most states at 16. In Illinois, an individual may be raped at age 13 and not be considered a child under anti-pedophilia laws.

Does something sound wrong here?

Juvenile Justice

The states have set up juvenile justice systems to handle minors who commit crimes. In juvenile court, a judge hears the case: children are not entitled to a jury trial. If adjudged guilty by a juvenile-court judge, the juvenile is sentenced to a juvenile detention center—at most until he or she reaches age 18, at which time the juvenile must be released.

But in the past few decades, so many juveniles have committed heinous, violent crimes that most states now permit the system to try juveniles as adults and to sentence them as adults (as in Graham’s case).

It seems to me that this is the point at which the juvenile-justice system needs reform. It makes no sense to try a non-adult as an adult, because by definition an immature person is incapable of forming criminal intent or fully understanding the nature and consequences of his acts. An immature person—especially an uneducated child—cannot possibly be competent to assist in his own defense.

Yet adults must be sane (capable of forming criminal intent and of understanding the nature and consequences of their acts) and competent to stand trial, that is, able to assist in their own defense.

If an adult is insane or severely mentally impaired, he is held until he is competent. We’ve seen this recently in the Kathleen Hilton case: she was not found competent to stand trial for ten years following the arson homicides of which she was accused.

An Idea

If an adult can be held for 10 years before she is competent to stand trial, why can’t a minor aged 13 be held for 4 or 5 years before he is moved into the adult criminal justice system? Or a 16-year-old like Graham be held for 1 or 2 years?

If that had been done in the Graham case, as I understand it, he would never have been free on parole at age 16 to commit the home invasion and armed robbery for which he received the sentence of L-WOP. He would only have been arrested six months earlier for a first armed robbery and then held for 1 or 2 years before standing trial.

Tried as an adult at 18, he might have been sentenced to more than the 1 year he originally received, but he also would have been given credit for time served—and he would not have been free to commit the more serious crimes at all.

“Cruel and unusual”—More than “changing standards of decency”

In Graham v. Florida, plaintiff Graham and his many supporters argued before the Supreme Court that a punishment of life without parole (“L-WOP”) is “cruel and unusual punishment” (which is prohibited by the 8th Amendment) when applied to a minor. To prove that L-WOP is “cruel” they argued that it inhumanely prevents imprisoned minors from hope of rehabilitation. To prove that L-WOP is “unusual” they cited statistics of the rarity of the punishment.

L-WOP is possibly cruel . . .

As someone who studies the English language and its evolution, I’m not surprised that 21st-century lawyers would interpret the 8th Amendment’s prohibition of “cruel and unusual punishment” in this way. “Cruel” now means “inhumane,” and 21st-century standards of human decency demand that punishments of minors not stunt or deform them, mentally or physically. (Graham’s lawyers pointed out that in prison, L-WOP convicts do not have access to education or vocational training, thus stunting the development of minors in the system.)

L-WOP is possibly unusual. . .

I was a bit surprised, though, when Graham’s lawyers equated “unusual” with “rare.” More often today (“usually”) when English speakers use “unusual,” they equate it with “strange.” I suppose Graham et al. defined the term this way because rarity is something that can be precisely quantified.

Unfortunately, “rarity” does not mean “unusualness” today. If rare punishments were prohibited under the Constitution, then capital punishment would be prohibited, because it is the rarest of all punishments in our system.

But is L-WOP “cruel AND unusual”?

You might wonder why Graham’s lawyers bothered to try to prove that L-WOP for minors is BOTH cruel and unusual. Why didn’t they just settle for its being cruel? Any punishment that is clearly cruel would certainly be prohibited. For example, whether rare or not, no court would impose a cruel punishment.

I believe they interpreted the 8th Amendment to mean that in order for a punishment to be prohibited, it must be both cruel and unusual, not merely cruel or unusual.

What did the 8th Amendments’ authors mean by “cruel and unusual punishment”?

I’ve read a lot of 18th century documents (and earlier). The English language has changed a great deal since the 8th Amendment was written, both semantically and syntactically.

For this reason, I have long thought the 8th Amendment was not written to mean that a punishment must be both cruel and unusual, but only that it must be either cruel or unusual. In addition, I believe that it was not written to mean that a punishment must be weird or even rare in order to be prohibited, only that it must be “not usual.” And “not usual” meant something very different from what it does today.

Only the word “cruel” meant essentially the same thing in 1785 as it does today. In the 18th century, people had learned that the standard of decency evolves. They would not have been surprised to discover that the 8th Amendment’s “cruel” might not be the future’s “cruel.”

AND

I’m convinced the syntax of the phrase “cruel and unusual punishment” is the 18th-century equivalent of “cruel or unusual punishment.” In those days the phrase would have been read as an ellipsis: “cruel [punishment] and unusual punishment.” “Cruel” and “unusual” are clearly both adjectives of “punishment,” but the conjunction “and” did not then have the effect it does today of making the two adjectives apposite. In other words, today “and” is used when it is necessary to stress that something has two distinctly different attributes.

In the 18th century it was less common to use “or” as a conjunction between two adjectives. For example, an 18th century writer would not say, “rayon or wool socks,” but rather “rayon and wool socks.” There would be no confusion that the writer was describing rayon-wool-blend socks, because such a fabric was inconceivable in those days. The same is true of “cruel and unusual punishment,” because no one would think the writer meant a punishment that is both cruel and unusual.

“Or” was reserved for diametrically opposed concepts. “And” was used for merely different concepts. No 18th century reader of the 8th Amendment would have taken it to mean that it prohibited only punishments that were both cruel and unusual. That would have been absurd, because that would have permitted cruel punishments, as well as unusual ones.

So, in the 18th century, I believe a lawyer would have argued only that L-WOP for minors was cruel. He would not have felt he had to prove it both cruel and unusual.

UNUSUAL

I also believe that the authors of the 8th Amendment intended “unusual punishment” to mean something like a “bill of attainder,” not a strange or even rare punishment. “Unusual” in the 18th century meant “not usual” or something close to “peculiar” to an individual.

However, “unusual” is so weird I need to write a separate blog post on it.