The Adversarial System, Rhetorical Battles, and Chess

Blogging every morning helps me activate the language center in my brain. It also often brings me into contact with the PC language cops, compulsive editors, and what I suppose could be called “special-interest watchdogs.” While these readers are generally critical of my words, their comments at least prove to me that someone “out there” is reading me. An added bonus is: I’m directly engaged in a conversation with my readers.

Sidebar: I hope I respond to everyone respectfully. If I inadvertently respond defensively, I apologize. Writing is truly a lonely life, and a full-time writer has few social interactions. It tends to make one testy, at best.

Blogging about trials also gives me an excuse to indulge my morbid curiosity about murder and my healthy curiosity about human language—at the same time. The more televised trials I watch, the more I’m convinced that courtroom rhetoric is the essence of the drama inherent in a trial.

Every trial is a battle or words. The words make the difference between innocence and guilt in every trial where the identity of the guilty party or the nature of the crime is in question.

Unfortunately, it’s a rare trial lawyer who understands this completely and deeply. Prosecutors tend to rely on what they consider to be emotional appeals and far-fetched metaphors to associate the defendant with the crime; defense attorneys tend to rely on the elusive concept of reasonable doubt. Jurors, I can assure you from personal experience, don’t need more emotion injected into a trial and can’t understand the concept of reasonable doubt because it’s meaningless.

Worse yet, the rhetoric most lawyers use in court is simply intellectually dishonest.

Chess Equilibrium

Recently I’ve become addicted to chess. I’m now reading chess theory, a topic a year ago I would have thought to be less interesting than watching paint dry. Now I can’t get enough of it.

What fascinates me about chess theory is that it’s identical to rhetorical theory: chess and rhetoric both are about maintaining a balance of power in a human transaction for as long as possible and then tipping the scale in favor of your side only when you know you have a sure way to success.

The rhetoric of chess and of the American adversarial system both are based on balance. The classical image of blind justice holding a scale is perfectly apt. In a trial the jury sits and watches the scale, first as it tips in the prosecution’s favor, then as it tips back toward equilibrium, if the opposing side puts on a good defense.

International Master Jeremy Silman, in his book The Reassess Your Chess Workbook: How to Master Chess Imbalances, says, “The correct way to play chess is to create an imbalance and try to build a situation in which it is favorable for you. . . . [A]n imbalance is not necessarily an advantage. It is simply a difference.”

What’s true of chess, I think, ought to be true of courtroom rhetoric.

Tipping the Scales with Words

In a trial, the only thing that juries have to rely on is words: lawyers’ statements, witness testimony, and the judge’s instructions. When physical evidence is sent into the jury deliberation room, all the jurors can do to interpret it is parse the words they heard in court about it.

Despite this, lawyers, witnesses, and judges don’t often speak clearly—and therefore forcefully—about the evidence, and consequently jurors have little to rely on during the jury deliberations.

In general, I suppose lawyers currently view the rhetorical problem in a courtroom as attack and counter-attack. The rhetoric is battle rhetoric—understandably, when a person’s life and liberty are at stake. However, a juror doesn’t want to sit silently by while a life-and-death struggle takes place before her eyes. The simple fact of having to contemplate a real crime is sufficiently emotional. A juror wants to hear rational arguments, facts, words that will point the way to a civilized conclusion to a dreadful situation.

Sidebar: Consider the trial of Raynella Dossett-Leath, for example. The prosecution side of the scale was that the victim was found dead with a singe bullet wound, but three bullets were fired; therefore it was murder. All things being equal, the defense would have presented a simple alibi case and then evidence of a possible third-party killer. But, in fact, there was an imbalance: there was strong evidence of suicide. However, the defense did not abandon its alibi case, thus tacitly agreeing that murder was a possibility. Evidence of suicide was a difference, which it failed to use to its advantage. While the defense attorneys were skillful orators, the substance of their rhetoric was battle, not balance (in my non-lawyer’s opinion).

If prosecutors wouldn’t overcharge defendants, the emotionalism in court would drop dramatically. If they stopped using inflammatory language in their opening and closing statements, jurors would feel more confident that their verdict would be acceptable to the community regardless of what it was.

If defense attorneys would focus on respectful cross-examination, they wouldn’t offend the jury quite so often.

Sidebar: In yesterday’s post I referred to the Andrade trial: Andrade was charged with murdering a transgender person, Angie Zapata. A watchdog corrected me about the issue of who insisted on referring to the victim as ‘she’ and that the defense offended the victim’s family members during cross-examination by referring to her as ‘he.’ Given what the defense was trying to achieve, that rhetoric was unwise. Not only did it likely rub the jury the wrong way, but the effect was to stress that Andrade had engaged in sexual activity with a biological male—when, it seemed to me, the defendant’s greatest fear was that in prison he would be subject to sexual assaults if it were known that he was (shall we say) AC/DC.

Most importantly, though, I feel a good defense is one that seeks to restore the balance. For every expert witness a prosecution presents, the defense should present two. For every investigative witness the prosecution puts on, the defense should put on at least one private investigator or former police officer to assess the police investigation. For every eye witness another eye witness; for every victim’s advocate or friend and family, another character witness for the defendant.

Edward Lasker, an American chess master of the past century, stressed that chess is a game of “all things being equal.” In chess, the player who moves first when all things are equal is the one who wins—white.

Essentially, “all things being equal” in a courtroom, too, the jury would have to find a defendant not guilty. That’s what the inarticulate phrase “beyond a reasonable doubt” is supposed to mean. Unfortunately, the prosecution always moves first; and this advantage is not—in fact—obviated rhetorically by permitting the defense to rebut the prosecution’s case by going second, when the prosecution is given the last word. Under such rules of conduct in court, the defense can nev
er restore equilibrium.

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The Economist—That Way Madness Lies

The Economist recently previewed the soon-to-be-published DSM-V, the manual of the American Psychological Association (APA) that guides expert psychological witnesses in criminal trials.

Wisely, the article is titled, “That Way Madness Lies.”  I say “wisely” because the new DSM-V is likely to lead judges and trial lawyers down the primrose path to Hell.

American law is already schizo when it comes to all things mental. Lawyers and judges are taught that motive is irrelevant to crime, but intent to commit a crime is. Worse yet, they’re also taught that the defendant’s “mental state” at the time of the crime is relevant.

The logic of ignoring motive is that a crime is a crime, regardless of why a person decides to commit the act. For example, if a person engages in civil disobedience (as Elaine Clermont did), she may do so for altruistic motives, but nonetheless she commits a crime.

The logic of proving intent is that accidents can happen, and when a person doesn’t intend to commit a crime, then he is innocent. Of course, a jury must examine the evidence of intent to commit a crime and find it lacking in such a case. When a driver hits a child running across the road and kills her, for example, the jury must decide whether this homicide was committed recklessly (willfully) or was an accident. The key here is that there must be some concrete evidence of intent either to be reckless or to kill. If the driver throws away empty liquor bottles before a squad car responds to the scene, the jury might reasonably conclude—since it’s illegal to have open liquor bottles in a moving vehicle—that he was willfully reckless.

But the logic of determining a defendant’s mental state at the time of a crime eludes me. I don’t see how anyone could do this, unless she was psychic.

Innocent by Reason of Insanity

Even before the publication of the first DSM in 1952, judges informed juries that certain mental states make it impossible for a defendant to form intent: among these are not only mental illness but also mental impairment (intoxication, temporary insanity, sleepwalking, “split personality”).

Since 1993, when the Supreme Court declared (in Daubert v Merrel) that only expert witnesses whose opinions are approved by peer review, all expert witnesses who testify about a defendant’s mental state at the time of the crime must rely on the APA’s most recent edition of the DSM for their diagnoses.

To the courts, it doesn’t seem to matter that the legal definition of insanity was devised in England in 1843 (the McNaughton Rule), while the peer-reviewed DSM no longer recognizes “insanity” as a mental state.

DSM-V Changes

According to the Economist’s review of the DSM-V, several changes in the APA’s approved opinions include: designation of degrees of illness (which I suppose they call degrees of severity of a disorder) and reclassification of many syndromes as personality disorders and declassification of others.

For example, one highly controversial issue is “transgender disorder.” Rumors are that the APA is going to decide whether transgenderism is a disorder or simply a condition, and in either case whether only children or only adults are to be considered “disordered” under these circumstances.

It seems to me, a non-lawyer, the issue can have an impact in court, for example, in cases such as 2009’s trial of Allen Andrade for murdering a transgender person, Angie Zapata.  In that case the victim was generally referred to as female. Her behavior—quite correctly—was deemed irrelevant: no one wants juries to blame a victim. But, in my opinion, the defense was prevented from fully exploring the issue of premeditation and the defendant’s mental state,  which was central to the prosecution. In fact, the state charged Andrade with a hate crime and first-degree, premeditated murder.

So, if the DSM-V classifies certain gender-identity conditions as disorders, it seems to me, either the defense or the prosecution (or both) in future such cases could potentially call expert witnesses to “prove” that a defendant’s mental state at the time of a violent confrontation with a sex partner is a form of temporary insanity.

For example, what if a transgender person became involved with a person she deemed to be of the opposite sex. The first time they had sex, her partner discovered that she had male genitalia. An argument ensued, during which the transgender person struck out violently and killed her partner. Would her lawyer be able to claim she suffered from a DSM-V-classified personality disorder, which caused her to strike out under the delusion she was defending herself against a larger, stronger man? Or even that she was hallucinating about her own body? Or could a defendant in a hate-crime case plead insanity on the basis of a diagnosis that he was paranoid schizophrenic about his own gender identity?

On the other hand, if the DSM-V classifies certain gender-identity conditions as not a disorder, the impact on civil litigation could be equally great: Does health insurance have to cover a condition the scientific community considers to be normal, if rare? In such a case wouldn’t treatment be considered merely cosmetic? And if the DSM-V classifies these conditions as a disorder, then is the proper health-care domain an operating room or a psychologist’s office? And, will a federalized health-care system make one or the other of these treatments mandatory (the cheaper option, no doubt)?

Delusions vs. Hallucinations

Even today under the DSM-IV regime, a defendant usually has to be hallucinating, not simply delusional, in order for a lay jury to understand that he or she is legally insane. The “fake Rockefeller,” for example, was unable to convince a jury that he actually believed he was a Rockefeller. He was clearly delusional, though. He clearly thought he had a right to kidnap his daughter.

According to the Economist, in addition the DSM-V will require psychologists to assign a severity classification to all mental disorders, whether they involve hallucinations or delusions. How will a jury be able to decide if the defense’s expert opinion is correct (that a defendant has the most severe form of a disorder) or the prosecution’s (that a defendant has a less severe form)?

Honestly, no jur
y is competent to decide between dueling experts.

Blind Them with Science

It’s time the Supreme Court recognized that “peer-reviewed science” isn’t the same thing as fact.

The legal definition of insanity also needs to be rewritten, and a judge, not a jury, should decide when a defendant is insane. It wouldn’t be that much different from other judicial responsibilities. After all, judges decide when an elderly person is incompetent and needs a guardian. Judges also decide when a defendant is competent to stand trial. If a defendant wishes to plead innocent by reason of insanity, a judge should hear the expert witnesses’ opinions and choose among them.

The only legal impediment to this sane approach is that no one is able to plead guilty to a capital offense. By pleading insanity, a defendant in effect is pleading guilty, even though denying responsibility. (I understand why: some people are so crazy they repeatedly plead guilty to other people’s crimes.)

But if we abolish the death penalty, the problem goes away. And if we permit defendants to plead guilty to crimes for which the penalty is life imprisonment without parole, then we spare the public the extreme expense of trying obviously guilty, serial criminals (as Kansas was spared a trial of the B-T-K Killer).

Police Officers on Cellphones, Walkie-talkies, and Radios

A few weeks ago a Tennessee police officer, Ronald Killings, was acquitted of reckless homicide charges by a jury of his peers. The defense presented the events as a case of an officer discharging his duties confronted unexpectedly by a child who darted out in front of his car. And, had that been the whole story, I would have agreed that the prosecution was entirely wrong to have placed a police officer on trial for such an accident.

However, the judge prohibited the jury from hearing about charges that Mr. Killings destroyed evidence of open liquor bottles in his unmarked car and from hearing the nature of certain conversations in which he was engaged while speeding through a residential neighborhood.

The jury heard only that Mr. Killings was engaged in a personal cellphone conversation after he increased his speed to reach the scene of a police stakeout. In Tennessee, it’s legal to use a cellphone and drive. Apparently, there’s no requirement, either, for hands-free use, but Mr. Killings testified nonetheless that the cellphone was in his lap and fell on the floor of the car upon impact, even though an eyewitness saw him exit the car with a cellphone to his ear.

A February 16 article in Science News, by Bruce Bower (“Cell Phone Distraction while Driving Is a Two-way Street”) suggests that police drivers should think twice before they accelerate when conversing on their two-way radios, let alone their personal cellphones. According to the article, a researcher at the University of Illinois (psychologist Gary Dell) has shown that not only does cellphone use impair driving ability, but driving also impairs comprehension of cellphone conversations. Dr. Dell says, “although many drivers regard talking while cruising a straightaway as no harder than walking while chewing gum, ‘that intuition is incorrect.’”

During the study, Dr. Dell told stories to drivers on cellphones, including one about a robbery. When asked to repeat the story, drivers were able to relate as few as half of the facts correctly.

Given this study, perhaps Murfreesboro, TN, law enforcement will rethink its policies on personal cellphones in police cars.

If so, I hope it will also consider that Mr. Killings not only was talking on a cellphone while speeding through a residential neighborhood, but he was simultaneously conversing with a fellow officer: testimony at the trial was that an officer called for Mr. Killings’ assistance at a robbery stakeout while he was on his personal cellphone. If Dr. Dell’s study is correct, Mr. Killings likely did not fully comprehend the nature of the scene to which he was being called.

Imagine how many people’s lives might have been put at risk if he had reached the stakeout only half aware of what was happening there.

Amy Bishop and “Nursery Crimes”

By a fortuitous coincidence I was reading B. M. Gills’ now-out-of-print Nursery Crimes (1986) when Amy Bishop’s sad history began to emerge in the news. It’s also a coincidence that the copyright of this mystery novel about a girl who murders several people was published in the same year in which Amy Bishop killed her brother, 1986.

The TV talking heads are all agog over Ms. Bishop’s insane string of crimes. At first, I thought the University of Alabama-Huntsville shooting was simply more proof of my contention that prosecutors ought not to be elected and most definitely ought not to be affiliated in any way with a political party: reports are that when Ms. Bishop shot her 18-year-old brother her mother was a local Democratic Party official and the local prosecutor was William Delahunt of Quincy, MA, now Democratic Representative in Congress.

But fiction is often more insightful than TV talking heads or bloggers: Nursery Crimes explains it all. When children of privilege (and that includes the middle class) kill, everyone rushes to protect them,  rather than society.

Sidebar: The key term is privilege. Race has nothing to do with it.

Gill’s Nursery Crimes

Gill’s plot is simple: In Britain during WW2, the family of an army bomber pilot (an officer) takes in two children from a bombed-out working-class family: “little Willy” (4) and “Dolly” (7). The officer’s daughter, “Zanny” (6) promptly pushes little Willy into the backyard goldfish pond and sits on his head until he drowns. Dolly sees it happen but wisely keeps her mouth shut. Zanny’s parents understand well that the pond was too shallow for even a 4-year-old to drown in, especially when two other children were there to pull him out, but they know the local constabulary will never suspect their child: not the progeny of long-time local landowners.

Zanny concludes from the way the local cops give her candy that what she did is fine—she’s special. The rules don’t apply to her the way they do to other children. She therefore commences to wreak havoc. She tries to kill Dolly by pushing her in front of a “lorry.” The driver swerves into a tree to avoid Dolly and dies in the ensuing horrible, fiery crash. And that’s just the beginning.

Zanny’s parents are scared. They don’t know how to “cure” her. They send her to a Catholic boarding school to get her out of their hair. There the priest who confesses her refuses to believe her confessions; the nuns think she looks like an angel and so must be one. The more horrific and overt her crimes become, the more the “establishment” rallies round her: they rationalize everything.

Amy Bishop’s Nursery Crime

Amy Bishop was 21 when she killed her brother, so it hardly qualifies as a nursery crime, but one can’t help but speculate that she likely killed a cat or two before she decided to do away with her brother. Psychotic behavior generally begins to emerge in late adolescence.

It’s difficult for a family to acknowledge that a loved one is crazy.

Sidebar: I use the word advisedly: psychologists may find the word offensive, but the alternatives are equally offensive in my opinion. The PC police object to “insane” and “mentally ill,” and the DSM doesn’t provide an appropriate adjective (“mentally disordered,” perhaps?).

The law doesn’t provide any help for such afflicted families. Children under 18 can be involuntarily committed to a mental hospital, but only the wealthiest families can afford to put a child in a private hospital, and many public hospitals are less than nurturing environments. (This is not an argument for public health care, because then all the hospitals would be less than nurturing, in my opinion.) After 18, the law requires hospitals to release mental patients if they wish to be released.

Sidebar: I’m a civil libertarian. I know how the law can be abused to incarcerate people. I simply think there must be a way to deal with the truly mentally ill so that they can’t hurt other people.

If an adult (such as a 21-year-old Amy Bishop) behaves bizarrely, all her family can do is seek a court order for a temporary hospitalization. In most states, to put a family member into a permanent guardianship, a family has to take him or her to court. Such a court order is rare accept when the troubled family member is elderly and has severe dementia (in other words, is a clear physical threat to himself or others).

The problem is compounded when the troubled individual is bright and well-educated. Many of us can’t distinguish between eccentricity in such a person and outright insanity.

Of course, you might say, there’s no reason to tolerate violence as eccentricity. I agree. But there’s madness that isn’t violent: paranoia, manipulative behavior, narcissism, inappropriate emotional responses to events, temporary amnesia, delusions, hallucinations. Few people are prepared to deal with these behaviors in children. We misinterpret them. And even if a parent noticed such behavior, there would be no one to turn to for help.

So, I understand why Amy Bishop’s parents and husband did nothing but deny there was a problem. I’m less understanding of the local constabulary, though—and completely appalled by prosecutors who indict selectively based on party affiliation.

Prosecutors ought to be apolitical—they should be appointed by an elected board (a county board, for instance, as are school district officials) based on credentials and perhaps experience in the local prosecutor’s office.

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Killings Jury Verdict–The Letter of the Law versus Justice

When the jury in the TN trial of Ronald Killings delivered a verdict of not guilty, I believe they followed the judge’s instructions, which included an admonition that they had to hold the prosecution to a heavy burden of proof and, if they had a reasonable doubt as to the defendant’s guilt, they were required to find him not guilty.

It was the current justice system that made several mistakes, in my non-lawyers’ opinion. These mistakes include:



  • The state should never have prosecuted a police officer for reckless homicide as a consequence of his performing his duties. If the law enforcement agency by which he was employed could not adequately punish him for his mistakes (by firing him, denying him pension, etc.), then the state ought to have prosecuted him only on lesser charges.
  • The state ought to have prosecuted him first on charges of destroying evidence. If the jury in that case found him guilty, or if he pled guilty, then the evidence of the two empty liquor bottles he allegedy threw away after the accident ought to have been presented to the jury. The eye witnesses, including the neighbor who testified she saw him “walk into the grass,” ought to have been permitted to tell the jury exactly what she saw; the grandmother and neighbor who recovered the liquor bottles ought to have been permitted to testify; the investigators who located the liquor store and surveillance tapes ought to have testified; the evidence of the blood test ought to have been presented by the defense and the prosecution ought to have been permitted to cross-examine that evidence and to present rebuttal evidence questioning the validity of the test.
  •     Sidebar: In most states, I believe, it is illegal for anyone to operate a moving vehicle with open liquor bottles inside.
  • The state ought to have presented more-detailed information about sheriff department protocols and procedures concerning cellphone use in vehicles speeding to a crime scene; if the department’s standards and procedures permit the type of use that the defendant engaged in, then the jury would have been instructed not to hold the personal cellphone calls against the defendant, but the citizenry would at least know that their sheriff has shoddy procedures.
  •     Sidebar: It’s difficult for me to believe that once an officer is authorized to speed to a crime scene without lights or sirens, he is also authorized to continue a personal phone conversation.
  • The state ought to have presented more-detailed information about standards and procedures of behavior when an officer is involved in an accident involving bodily injury; any deviations from these standards should have been clearly explained to the jury.
  • The state ought to have been given an opportunity to present the autopsy evidence, because the autopsy might have given the jury additional information about the speed at which the car was traveling.

The system is what disturbs me: In the Killings case it looks to me as if everything was done to protect the police officer involved in a fatal accident and very little was done to insure that in the future the citizens were being adequately protected. The system managed to schedule the two cases so that key evidence in the reckless homicide trial was not available, because it had yet to be proven to be true. The system managed to let the county medical examiner avoid testifying against a fellow county employee. The system even managed to over-charge the defendant, apparently to assuage community anger, and then not to present a good case for the charges.

And, ultimately, a jury from another jurisdiction was called up to hear a tragic case; they did not hear all the facts. The more I look at the jury system, the more I think things are way out of whack. Elected, political prosecutors only prosecute cases that make headlines; they over-charge those cases; they try to avoid grand-juries and instead throw the onerous responsibility onto petit juries; the rules of evidence have become increasingly complex and now make little sense; juries aren’t prepared for the responsibilities thrust on them.

I’m especially concerned when criminal trials involve police officers. Police officers carry weapons and are authorized to use them against their fellow citizens; police officers are authorized to travel at high speeds on busy, residential streets; police officers are authorized to draw blood for tests and collect other types of evidence. In all these activities, we, the people, have no choice but to trust them. The problem is that police are only human; they not only make mistakes, they also sometimes do things to protect their own interests when they shouldn’t. 

Criminal Justice—Ron Killings and a Child Treated “Like Nothing”

Brenda Carneal, grandmother of the police sergeant’s victim, told CNN’s In Session Ryan Smith that defendant Ron Killings lied on the stand when he testified in his own defense today. She also said she forgave him, because she understood that she had to if she wanted to get on with her own life. Her wisdom is vast. I wish all crime victims would understand that the justice system isn’t about vengeance.


But Ms. Carneal also said she wished Sgt. Killings would admit what he had done, and that her granddaughter was a “child he’s treating like nothing.” That’s exactly what I thought, too. In fact, that’s how the whole State of Tennessee is treating this child victim.


What I Heard—It Isn’t What the Killings Jury Heard


Ms. Caneal was a witness to the incident. She saw the officer throw two whiskey bottles away. She informed a responding officer who, she claims, told her, “Get your ass across the street or I’ll arrest you.”


She isn’t testifying in this trial, because the State has decided it would violate the officer’s rights if the jury knew what he had done as soon as he got out of the car after the accident. (Compare this with the Trooper Higbee trial in which the victims’ grandfather was permitted to testify about what the responding officers said to him. What’s the difference? IMHO, the only difference was the gender and race of the grandparent.)



  • Sidebar: Ms. Carneal later donned rubber gloves and retrieved the two liquor bottles. With them she found a receipt, which she gave to her family’s lawyer. The receipt proved that Killings had purchased the liquor a few hours earlier. They apparently retrieved surveillance videos from the liquor store, which showed Killings was the buyer. OK: So, State of Tennessee, explain to me why this isn’t relevant to a charge of reckless homicide?

The State also, apparently, has decided that the local medical examiner doesn’t need to bother to testify against the officer.


The State also, apparently, has decided that they don’t wish to reprimand or demote an officer who was speeding to a crime scene while talking on his personal cell phone with a friend, another officer.


The Defendant Testi-lies


As I watched Killings try to convince the jury he was genuinely distraught at the child’s death, I thought about the testimony of Trooper Higbee, whose sorrow was so intense that he actually expressed his regrets to the victims’ mother who was sitting in the courtroom. You could tell he could barely choke back the tears.


Killings, though, let the tears rip, and he didn’t say a single word to the victim’s family.


Among the allegedly callous behavior Killings sought to justify on the stand was his failure to render any aid to the child other than to put a coat over her torso. According to him, “I didn’t want to do any CPR, because I knew she had some damage.” Hmm. Is he sure it wasn’t because he had alcohol on his breath? I realize he meant he didn’t pound on her chest, but you can give artificial respiration without causing any further “damage.”


The jury is the finder of fact: In part that means they can judge the sincerity of tears. If I were on the Killings jury, I would try my best to assume his tears were real—but I’m afraid I’d have some reasonable doubts.


The greatest doubt of his guilt, as far as I’m concerned, came from a defense witness who saw the child crouch in a sprinter’ stance before she darted out into the road, almost as if she was trying to race the car.


Unfortunately, the prosecutor’s cross-examination of this witness was ghastly. He ought to have called her as a state’s witness, and rather than trying to discredit her memory, he ought to have asked if she saw Killings “walk into the grass, too.”


The problem for this jury is the same problem all juries have: no one tells them what really happened. There’s a good chance this jury will find Killings not guilty because of reasonable doubt. But I am absolutely certain that when they learn about the liquor bottles, they’re going to be furious.


Another TN Medical Examiner to the Rescue

Yesterday in the trial of TN police officer Ronald Killings the prosecution had to call a witness to the stand to explain to the judge why the state’s medical examiner was not going to honor the subpoena to appear in court as scheduled. Incredible!



Sidebar: Yesterday I expressed an opinion that the jury will find it hard not to wonder whether an African American child is likely to have been treated with as much respect as a white victim would have been. Since medical examiners are part of the justice system, I’m afraid that this ME’s contempt of the trial may convince the jury that this victim is not taken very seriously.


Without CNN’s In Session cameras in that courtroom, the taxpayers of Tennessee would have no idea they’re paying the salary of a medical examiner who ignores subpoenas in order to visit his personal physician. If you or I ignored a subpoena—or even a jury summons—we would promptly land in jail on contempt of court.


Accident Reconstruction


After In Session went off the air, CNN continued to stream the trial over the Internet. Toward the end of the day, a TN state accident reconstruction expert testified about the data in the black box from Killings’ vehicle. Again, it was a moment reminiscent of the NJ State Trooper Higbee trial—but with one big difference: this time it was the prosecution’s expert who understood how to explain complex data to a jury. The upshot of the expert’s testimony is that Killings was traveling at a very high speed.


Undoubtedly the defense will argue that Killings was traveling at a speed appropriate for an officer responding to the scene of a crime. We can only hope the prosecution can explain to the jury that it was not an emergency: he was responding to a call for assistance at a place where another officer had recovered stolen property. Presumably the property did not have legs, though.



Sidebar: It turned out that the property did have legs. Another officer on a stakeout observed several suspects removing stolen property from a home in the neighborhood.


Lip Service


In addition, Killings was speeding with his personal cell phone in his hand. Yesterday the prosecution called to the stand the person who was on the other end of the call. I’m not sure what her relationship with Killings was, because the defense objected to just about every question she was asked on direct. She was a young, very attractive white woman, and her phone records show she often spoke to Killings several times a day. All we know for sure about the relevant conversation was the way it ended. According to the young woman, he suddenly said, “Oh, f—.” Then the line went dead. (The prosecution wasn’t even able to tell the jury that the call was not in the line of duty.)


The Juror Wants to Ask a Question


After one of the breaks in the trial, the judge spoke to the jury to remind them that he had informed them at the beginning that he would not permit jury questions. Apparently one of the jurors had a question he urgently wanted to ask. As I said yesterday, I’m sure after this trial the jury is going to be angry when they find out what they weren’t told.


I can guess what question the juror is longing to ask: What did Killings do when he “walked into the grass.” (It might be, “What was he talking about with the foxy lady?” but I believe we can all imagine what it was.)


At some point, every judge tells the jury they are “not to speculate” about information that’s withheld from them. But this is impossible for any human being with a functioning frontal lobe.


Furthermore, it isn’t “speculation” to discuss the evidence during deliberations: that’s what deliberations are all about.


In the Killings trial an alert juror will already (during the prosecution’s case) have heard that the first thing Killings did when he got out of his car after the impact with the child’s body was to walk into the grass.


The juror will already have heard a reading of Killings’ first interview in the police station, when he said he was worried about the open trunk of the car because of what was stored in it. He made a big point of stressing that the trunk held SWAT equipment—and he wasn’t worried about anyone at the scene taking it or anything—but he was worried about it.


The jurors are entitled to express an opinion that unless he went into the grass to vomit, then it was not the right thing to do first. And the jurors are entitled to express an opinion that his explanation for his odd behavior at the scene (worries about the contents of his trunk) was also inappropriate for an officer at an accident scene. It sounds to me like an example of what most prosecutors like to call “consciousness of guilt.”


 


Can the cops fake a suspect’s blood-alcohol level? Ron Killings trial

In the TN trial of police-officer Ronald Killing, the issue of his attempting to destroy evidence after the accident will not be raised before the jury, because another indictment in that matter is pending. Unfortunately for justice, the evidence of which he stands accused of destroying is evidence of possible alcohol use in his police vehicle.

If Killings’ had been a private citizen at the time of the incident, I wonder if he would have been immune from charges of drunk driving?

According to CNN’s In Session commentators, Killings’ blood was tested two hours after the incident, and he was found to be completely alcohol-free. Even so, apparently a witness saw him throw a bottle or two into the grass near the scene, and at least one bottle was recovered.

A forensic pathologist on In Session, Richard Saferstein, said that blood tests can have a small margin of error but never show zero alcohol when a suspect has consumed alcohol within two hours of the test. Apparently the lawyers on CNN thought that was proof-positive Killings had not been drinking.

Of course, I am not a lawyer, and I guess I have a very devious mind: I immediately wondered if it would be possible for one cop to draw another cop’s blood in such a way as to falsify the results, or if it would be possible for one cop to supply blood to substitute for another’s, or if it would be possible for a cop to keep a vial of his alcohol-free blood around for use in an emergency.

It didn’t take much research to convince me that any of these can easily happen.

Results of Blood Tests

An Arizona attorney specializing in DUI defense, Edward Loss, writes in “Blood Test Issues” that actually the collection of blood-alcohol samples is very complicated and subject to error. As I understand his article (and my understanding is probably very imperfect), the following may invalidate a blood test:

  • The alcohol or antiseptic used to clean the skin may cause a false positive.
  • There are two types of alcohol tests, one of which cannot measure the parts per million of alcohol, only the presence or absence of alcohol. The process used in such a test can artificially increase the percentage of alcohol in the blood by reducing the volume.
  • The police use a NIK kit to draw blood for DUI forensics, which collects the blood in a way to avoid the above problems—but the kit can be misused.

The problem, of course, is that police officers are often the ones to draw the suspect’s blood.

Chain of Custody Problems

I wonder: has there ever been a DUI case in which the prosecution questioned whether the blood that was tested was also proven to be the suspect’s blood? In other words, in the Killings case can we be sure the blood was Killings’? If a DNA test proved it was his blood, can we be sure it was drawn the night of the accident?

In the normal course of a DUI arrest, the chain of custody of the blood sample is thoroughly documented. By the time the test results reach court, the only question is how much alcohol was in the suspect’s blood at the time of his arrest. In most trials, it’s inconceivable that the cops would try to substitute alcohol-free blood for alcohol-laden blood (unless the suspect was a politician, I suppose).

But in the Killings case, the cops had every reason to want to scrub the suspect’s blood of alcohol.

Killings and “Phlebo-Cops”

How do we know when a cop’s blood test is properly conducted? If a police department is dishonest, there’s no way to tell. A dishonest cop could obtain a NIK kit and could preserve a vial of alcohol-free blood in the office refrigerator or in a cooler in the trunk of his car right beside his beer bottles. Dishonest cops could even draw a fellow cop’s blood after an incident in place of the suspect.

Sidebar: I’m not sure, but it looks to me as if a “non-government” customer can order products from a forensics supply company, so long as they agree not to export the material outside of this country. If this is so, then even a mystery novelist could obtain a NIK kit and keep a vial of her alcohol-free blood in her kitchen refrigerator. I haven’t tested this hypothesis, but it would be something to consider if I didn’t feel faint when someone draws my  blood. Imagine the plot possibilities. I’m interested, too, in document examination kits; my Ph. D. is in a technique called textual criticism, which aims to analyze and identify historical manuscripts. I also found some wonderful document examination kits, which I might—in fact—try to order.

In the Killings reckless homicide trial, we will never hear testimony about any of these issues. If the prosecution intends to question the blood test, it will have to be during the trial on the destruction of evidence (liquor bottles from the officer’s car).

I’m not particularly hopeful that the truth will ever come out: the prosecutor in the reckless homicide case is having difficulty formulating the simplest questions about the accident. For example, he was unable to figure out how to ask an eye witness whether a police report made at the scene improperly characterized her words:

“Did the officer’s report, which states that you saw the child cross the street, correctly describe what you actually said to him, yes or no?”

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Officer Killings, Police Thuggery, and Trooper Higbee

CNN’s In Session is currently covering yet another TN trial of yet another police officer for reckless homicide (TN v Ronald Killings) of 11-year-old Lakeisha White.

Sidebar: I hope we won’t see the Serial ME in this trial. I have no doubt, if she does testify, she will deduce from the injuries to the victim that the manner of death was reckless homicide, not simply homicide.

In some respects the issues in this trial resemble those in last year’s NJ trial of State Trooper Robert Higbee, but in some important respects it’s very different. Among the important differences, which are likely to impact the jury’s verdict, are: 1) possible police misconduct in the investigation, 2) possible alcohol consumption by Det. Sgt. Killings and subsequent attempts to cover up the evidence (which the jury may not hear about) and failure to follow procedure, 3) the victim was a pedestrian, not in another vehicle, and 4) the race of both the victim and the officer (both were African American)

Let’s get race out of the way: it ought not to affect the jury’s verdict, but I’m not sure how any juror of any race could not take it into account. Every black victim of a police incident inevitably will raise questions in everyone’s mind: did the system treat the victim with the same respect it would have afforded a white victim?

Sidebar: An eye witness testified today that she saw the little girl’s body struck. She gestured in an arc and said it “floated” in the air. “It was like a rainbow, but the colors were her clothes.” A very sad memorial of a child’s death.

But the most important difference from the Trooper Higbee incident, in my non-lawyer’s opinion, is that the officer in this case was not operating by the book as he sped toward a crime scene, not before, during, or after his vehicle struck the child who was crossing the road. In the military I believe his behavior would have been called “dereliction of duty’; he would have been court-martialled. I feel a CID type of investigation in a police department should also find he violated police procedure.

Police Misconduct

Every citizen is justifiably outraged by police thuggery. Law enforcement authorities have to be trusted to protect us, not to harm us, or the legs will be kicked out from under our liberty. (It’s one of those Kantian categorical imperatives.)

Sidebar: By all accounts, Drew Peterson wouldn’t have been able to get away with abusing his wives, let alone murdering them, if he hadn’t been a police officer and if his colleagues hadn’t repeatedly covered up complaints against him. Peterson was a police thug.

In the Killings case, according to CNN, Officer Killings has been separately indicted for throwing away two liquor bottles he had in his car when he struck the child. The judge has excluded references to this fact in the current trial. (After the verdict, when the jury learns this, they’re going to be very, very angry that this was kept from them.)

In addition, Officer Killings was talking on his cell phone (not his police radio) while driving at high speed in the dark and apparently through a residential neighborhood. This alone—I believe—will convince the jury he was not in the act of performing his duties when he struck the child. This is an arrogant, reckless disregard of public safety. (Here in Illinois it’s illegal to talk on your cell phone, even if you’re stopped at a stop sign.)

Police Investigations

According to CNN, the prosecution is questioning the police investigation of the incident (ironically, since usually it’s the defense that does this). IMHO, police investigative techniques should be scrutinized in each and every crime. Not only should the pseudo-scientific CSI evidence be torn to shreds, but the motives of the investigators must be scrutinized.

In the Killings case, the prosecution seems to be hinting at a serious police cover-up. It reminds me of the Trooper Higbee case, in which the prosecution hinted that the officers who responded to the scene lied to the victims’ grandparents.

The difference between the two trials in this regard is the judge: in this trial the judge excluded the most important evidence of police cover-up (the issue of the liquor bottles); in the Higbee trial the judge did not exclude the testimony of the grandfather.

Admissible Evidence

I bet if you asked every former juror what frustrated them the most about their jury experience, it would be “what they didn’t tell us.”

The “rules of evidence” generally aren’t written by legislators (generally, but not always); the rules of evidence are established by common law and case law (the accumulation of centuries of courtroom practices). In America, a law-school textbook has become the Bible of evidence, even for the U. S. Supreme Court: John Henry Wigmore’s Evidence.

Our courts give incredible power to the lowliest, most-incompetent of judges—the power to admit or exclude evidence. By admitting junk science and innuendo into evidence, a judge can insure a conviction. By excluding exculpatory evidence, a judge can insure a conviction.

Sidebar: I’m not saying the judge in the Killings case is incompetent. In fact, this may be a case in which the law prohibits him from admitting evidence of a separate indictment. However, the jury is still suffering from a deficit of information. Why didn’t the state try Killings first on the minor charges?

Although the jury is called “the finder of fact,” the only facts they can find are ones the judge admits. So, it’s possible the Killings jury may find that—like Trooper Higbee—he was doing his duty. That would be a great injustice: he may have been drinking on duty, and his fellow cops may have helped him cover up this fact.