“If the law makes you a witness . . .”

“If the law makes you a witness, remain a man of science; you have no victim to avenge, no guilty or innocent person to convict or save. You must bear testimony within the limits of science,” said Dr. Paul Brouardel (1837-1903). 

Of course he said it in French over one-hundred years ago. In modern English it would probably be “Forensic-science expert witnesses must bear witness to nothing but the truth.”

If only the “hired gun” expert witnesses in high-profile trials of the past decade had followed Brouardel’s admonition. (Cable TV’s Dr. G springs to mind. Remember how she declared that poor little Caylee Anthony had to have been murdered because of the proximity of her skeletal remains to a black, plastic garbage bag? A pronouncement like that is hardly within “the limits of science.” Dr. G clearly thought she had a victim to avenge.)

I learned about Brouardel from a video lecture series sold by www.TheGreatCourses.com.

Review of The Great Courses “Trails of Evidence,” by Elizabeth A. Murray

“Trails of Evidence” is a 36-part series of half-hour video lectures by Dr. Elizabeth A. Murray on all aspects of state-of-the-art forensic science, which I highly recommend to all trial lawyers and trial watchers. Brouardel’s admonition lies at the core of all of Dr. Murray’s forensic science investigations and teaching (she’s Professor of Biology at Mount St. Joseph College of Cincinnati).

Throughout the series, Dr. Murray cautions against foundationless forensic science. For example, in lecture 22 (“Decomposition—From Bugs to Bones”) she questions the usefulness of cadaver dogs, which of course were critical to Scott Peterson’s conviction and were also employed in the Casey Anthony investigation to prove that Caylee’s corpse had once been in the Anthony’s back yard, among other places.

Dr. Murray points to a case in which she located a clandestine grave by crawling on her hands and knees over a suspect patch of earth, which had previously been sniffed by cadaver dogs without success. She located the grave based on changes in the ground level and other soil indications. A body was buried there, but the cadaver dogs couldn’t even sniff out that a corpse had ever been near the place. In addition, Dr. Murray recounts the tale of dishonest dog handler, Sandra Murray, who involved herself in many high-profile cases but was eventually convicted of planting evidence for her dogs to find.

If the Drew Peterson jury had listened to Dr. Murray’s lecture 28 (“Human Memory and Eye-Witness Accounts”), they could not have convicted Peterson of murdering his ex-wife. Dr. Murray explains very clearly what is wrong with hearsay evidence, even when it’s presented from the witness stand by a pastor: human memory is a personal construct. No one remembers anything exactly as it happened. No one remembers any conversation word-for-word. The further in the past an event occurred, the less likely it is that anyone will remember it correctly.

Sidebar: Recently, Donna Bridge, a post-doc at Northwestern University’s Feinberg School of Medicine, published in the Journal of Neuroscience her recent findings about the way human memory works. Bottom line: The more often a person recalls a past event, the less accurate the memory becomes. That’s right, the more often an eye-witness to a crime, for instance, is asked by the cops and the lawyers to repeat what he or she saw, the less accurate the testimony becomes. This explains why Judge White (the first judge in the Drew Peterson case) found one hearsay witness not to be credible, but trial Judge Burmila did: by the time she took the stand she had repeated her story so often that she was convinced it was accurate—and her “conviction” convinced the jury.

Throughout “Trails of Evidence” Elizabeth Murray’s refrain is: To be a good forensic scientist you must first become a rigorous scientist. In fact, she recommends that would-be forensic scientists not study forensics or criminal justice in college, but instead major in one of the biological or physical sciences, then go on to graduate school and get a Ph.D. in forensics-related science before becoming an applied scientist, that is, a scientist who specializes in forensics. That’s what she did: she studied biology, anatomy, and anthropology before she became a criminal investigator.

COMING JUST IN TIME FOR HALLOWEEN: Chalk Ghost, a novella: “a mystery that only the dead can solve.”

Leyritz Trial—On Red-Light-Camera Enforcement

The Florida trial of baseball hero Jim Leyritz is expected to feature evidence from a red-light-control camera. These robo-traffic-cop systems have recently become controversial in this corner of the world (northern Illinois). One Chicago suburb, for example, installed very short traffic lights that caused shoppers at one of the nation’s largest shopping malls to trigger red-light violations at such a high rate that retailers in the area demanded the city shut the cameras off. They were driving shoppers away from the mall. In Chicago proper, drivers often claim that yellow-lights have been shortened so that more red-light violations are triggered.

These cameras are like speed traps in rural towns: the cops rig the system to boost traffic violation revenue, not to improve public safety.

The Leyritz Incident

I’m not clear on the details of the late-night accident in which Jim Leyritz’s car hit another car in a Fort Lauderdale intersection, but among the bits of information I heard on In Session recently was pre-trial testimony of an expert on traffic-enforcement cameras. Most of what she told the court involved the time stamps on the video frames.

But it seems to me that the length of the lights might also be relevant. If Chicago’s yellow lights were shortened when traffic cameras were installed, it might also be possible that Florida’s yellow lights have recently been shortened, too.

Obviously, experienced drivers are acclimated to yellow lights of a fixed duration. If some yellow lights are shorter than others, that would pose a hazard.

The city of Chicago has a very informative (and defensive) page about robo-traffic-cop lights. It explains that the system (in Chicago, at least) relies on two triggers: 1) a sensor in the pavement right in front of the white stop line and 2) the light turning red. The Chicago faq states:

The digital cameras are tied into the traffic signal system and sensors beneath the pavement, just before the white stop bar.  The cameras are triggered by a vehicle passing over the sensors only after the light turns red.  The cameras take still and video pictures of the rear of a vehicle, including the license plate.

The faq also states that Chicago’s yellow lights are 3 to 4 seconds long, depending on the speed limit of the street. Supposedly this yellow-light duration is “well within” the federal Department of Transportation guidelines. Nonetheless, the city has received complaints about this and received requests to lengthen yellow lights. The Chicago faq says:

Why not just make yellow light [sic] longer?

Changing signal timings will not solve the problem of drivers running red lights.

The purpose of the yellow light is to warn drivers that the light is turning red.  It is not intended to promote speeding or risk-taking.  Unfortunately, too many drivers believe that yellow is a sign to speed up — when in reality it should be a sign to slow down.

Extending the yellows won’t solve the problem because motorists will learn that they now have an additional second or two, and will still treat the yellow as an extension of the green.  The behavior that some drivers exhibit—running red lights—will not change.  Longer yellow lights will not be beneficial to the overall safety of the intersection.

Additionally, a timing change would have a negative impact on traffic flow throughout the city, increasing congestion and reducing travel times.

Of course, the issue isn’t really the length of yellow lights, it’s different lengths at different intersections and also allegedly shortened yellow lights when traffic cameras are installed.

BTW: The idea that longer yellow lights would increase congestion is ludicrous; red lights are what increase congestion in the city’s busiest intersections. Reducing the length of red lights might actually reduce congestion. Why? Imagine a street in the Loop during rush hour. Traffic is “wall to wall” in both directions. A long red light on one street permits more traffic to pile up in front of it, usually producing a line of cars longer than the city block along which it runs. The traffic comes to a dead stop. Cars (taxis, especially) enter the intersection on the yellow light and stop in the middle before the light turns red, blocking the intersection for the green-lighted traffic. That’s why Chicago stations traffic cops at all the intersections, to direct traffic and over-ride the traffic lights.

I believe such chop-logic is rampant in “traffic science”: When I recently requested a 4-way stop sign at a dangerous corner near my house, the village supposedly “studied” the traffic patterns and concluded that “as studies have proven” too many stop signs cause people to run stop signs. Hmm, no stop sign is dangerous but a stop sign is more dangerous.

How long should a yellow light be?

The Department of Transportation’s guidelines for yellow lights—not surprisingly—aren’t all that easy to locate or to interpret. I found a listserv discussion on the DOT website with the following information:

The ITE recommended practice (ITE Technical Committee 4A-16, "Recommended Practice: Determinging [sic] Vehicle Change Intervals," ITE Journal, May 1985) for determining the appropriate length of a yellow interval is:

y = t + (85th percentile speed)/(2a + 64.4g) where:

  • t = driver reaction time in seconds (1.0 second is a commonly used value for this parameter)
  • 85th percentile speed is in ft/s
  • a = deceleration rate of vehicles, fps^2 (10 fps^2 is a commonly used value for this parameter)
  • g = grade of approach, expressed as a decimal (ie 2% downgrade = -.02 64.4 = 2 times the acceleration due to gravity

The rule of thumb expressed in the previous post of .5 seconds for every 5 mph results in a value that is less than recommended for 85th percentile speeds of 35 mph or less and a value that is larger than recommend for 85th percentile speeds greater than 35 mph for intersections at level grades.

I’m not a lawyer and I’m even more not a mathematician. I doubt that the people who install traffic cameras are either. Try as I might, I could not parse this supposed equation.

The “rule of thumb” calculation the author disparages makes more sense. At 30 mph that equation would result in a 3-second yellow light, but the DOT commenter says that’s too short. If so, the city of Chicago’s claim that a 3 second light is within guidelines is incorrect.

Back to Baseball

My question is, how long was the yellow light that preceded the red light Jim Leyritz is accused of running?

If he was speeding, as well as DUI, he might have entered the intersection while the light was yellow, thinking he could beat it. This, of course, would weigh heavily against him—not that he entered the intersection on a yellow light, which is legal, but that he was speeding and drunk.

If he wasn’t speeding an
d if he was below the legal limit, he might have legally entered the intersection on the yellow light, and that would mean the other car was the one running the red light, not him. That might exonerate him.

But if the DOT can’t explain its recommendations for the length of yellow and red lights to the traffic department of Chicago, how will the Leyritz jury be able to understand the issue? I’m fairly certain that none of the lawyers in the Leyritz trial is any better at math than I am.

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A last look at the science of Matt Baker’s conviction

In January a minister named Matt Baker was convicted in a Waco, Texas, court of staging his wife’s suicide. The trial was covered last week on CNN’s In Session. “Forensic science” played only a small part in the conviction. Most of the evidence presented was circumstantial and based on eye-witness testimony, admissible “hearsay,” and the victim’s personal journals. The forensic evidence included the usual medical examiner’s testimony as well as computer forensics and fingerprint evidence.

Eye-Witnesses and Hearsay

The Baker trial was conducted in a rational, unemotional manner, as is appropriate. Of all the eye-witness and hearsay-witness testimony, the most dramatic and subjective, as well as the most telling, was that of the woman with whom Baker was having an affair at the time of his wife’s death. But it wasn’t this woman’s claim that Baker told her what he planned to do that convicted him (IMHO).

Baker’s conflicting statements and inexplicable computer-use is what convicted him. Taken in light of his wife’s statements from the grave (journals and psychological counselor’s testimony) that she thought her husband was trying to kill her, his production of an obviously phony suicide note, followed by his destruction of the computer and printer used to produce the suicide note, is what condemned him.

Given that Matt Baker was found guilty of first-degree murder in Texas, a capital punishment state, but he was sentenced to life, he’s a fortunate man indeed. Perhaps God really did hear his prayers.

The Forensics of the Suicide Note

Baker claimed to have found a computer-printed suicide note beside his wife’s body. It wasn’t hand-signed. The first cops on the scene handled the note. At some point, the note was dusted for fingerprints and many smudges were found, but no clear prints other than a palm print, which could not be matched to the victim (because her fingerprints were never taken) nor to any of the 18 or 19 people who touched the note or could have touched the note.

If I remember correctly, 18 of the 19 people were “excluded” from the palm print; the 19th person (Baker) “could not be excluded.”

The fingerprint expert testified for the prosecution. Both on direct examination and on cross-examination, she refused to fall into the trap of declaring definitively either that Baker could have made the palm print or could not possibly have made the palm print. Although she used the intellectually dishonest phrase that all forensics experts are trained to use (“could not be excluded from contributing”), she went on to explain why it was impossible for her to draw any such conclusion. This woman should be given a medal.

Unfortunately, the lawyers for both sides didn’t understand logic or inference. This is one of the great failings of American criminal justice. Even as we learn more and more about the natural world (how things work and don’t), the justice system continues to rely on the logic of ancient Rome (or earlier, perhaps Greece or even Biblical times).

The following isn’t a logical syllogism:

  1. 18 people are known to have touched this piece of paper, and we know their palm prints; 2 other people we know of (the killer and the victim) could have touched this piece of paper, and we know 1 of their palm prints.
  2. The 18 people whose palm prints we know and whom we know touched the paper could not possibly have made the palm print.
  3. Therefore, the 1 person we know of whose palm prints we have but who won’t admit to having touched the paper and whose print might have made the mark is the most likely person to have made the palm print—not the victim and not some unknown person (from among the other 7 billion on the planet).

Sidebar: The above “logic” was that used by the prosecution. The defense used a similar “logic” to suggest that Baker could not possibly have made the print, because he was not “included.”

Even a superstitious old Greek like Aristotle would have gasped at that. Yet the American adversarial system constantly foists arguments like this on juries. 

Of course, when using fingerprints and palm prints as evidence, the courts also don’t understand that they aren’t “scientific” evidence at all: fingerprints are only suggestive, not real proof of anything.


  • Aren’t provably unique
  • Are subject to mutation
  • Aren’t obviously identifiable, because they’re so complex
  • Are rarely complete and clear

As evidence taken from a crime scene, fingerprints are meaningless unless they don’t belong to anyone who lives there or is known to have visited there for a legitimate reason.

Sidebar: It seems to me, it is the “thing” that shouldn’t be found at the scene of a crime that’s always relevant, not the “things” expected to be found: a stranger’s fingerprint, an unlikely suicide note. Yet, forensic science goes out of its way to try to find things they can “include” and “not exclude.”

What difference would it have made—to the jury, especially—if Matt Baker’s fingerprints were clearly on the paper? He could simply have claimed that he always loaded the printer paper for everyone in the house.

In fact, this was Baker’s big mistake, in my non-legal opinion: he thought he needed to deny any contact with the suicide note and to destroy all evidence related to the printing of the note. He even told investigators at one point that he and his mother tried to find evidence on the computer’s hard drive of when the note was printed in order to show that the note was printed when he had an alibi. That really wasn’t necessary. If he was so worried about the note, why did he print one at all? Most suicides don’t leave a note.

Of course, Matt Baker like most murderers isn’t as smart as he thinks he is—or he would have been able to find another solution to his problems.


What every mystery writer knows about “time of death”

A couple of years ago I watched with great interest a CourtTV broadcast of the trial of a Vermont woman named Hope Schreiner. She was charged with murdering her husband by first trying to kill him with a drug overdose and, when that didn’t work, by bludgeoning him to death with an unknown blunt instrument. It was such a classic “Black Widow” case that I used several of the elements in the plot of THE JUROR HANGS.

Black Widow Cases

The classic “Black Widow” murder—it seems to me, a mystery writer—include: 1) a wife who poisons her husband, 2) rumors among friends, family, and neighbors, 3) feeble, pathetic, or incapacitated victims (in other words, a victim whose wife is his caregiver), and 4) stereotypes about women, such as “poison is a woman’s weapon” and an unloving woman is inherently evil.

Time of Death and Air-Tight Alibis

One aspect of the Schreiner prosecution that struck me as particularly unfair was the medical examiner’s testimony about “time of death,” which is one of the three things an autopsy must determine:

  1. Cause of death (medical)
  2. Manner of death (legal)
  3. Time of death (fact)

A medical examiner (usually a physician with a specialty in forensic pathology) conducts an autopsy in cases of suspicious death (usually deaths that occur when the deceased wasn’t under the care of a physician when he died). An autopsy is essentially a dissection of the body, but before the first incision is made in the body the ME must document three physical conditions as a means of determining how long the body has been dead:

  1. Rigor Mortis: Stiffening of the muscles and joints, beginning in the extremities and progressing toward the torso;
  2. Lividity: Settling of blood due to gravity, in the lowest parts of the body (back for instance, if the body rests on its back);
  3. Core body temperature (liver temperature): This requires an incision; a thermometer is inserted into the liver.

Each of these body changes is an indicator of time of death, because the amount of time for each of them to commence and end is well documented. (Note: Each of these is also a very wide range, very imprecise.)Each of these is also affected by the ambient temperature of the environment in which the body was found: in general, the warmer the environment, the slower these processes, while the colder the environment, the faster. The breath of life is literally warm. Even mystery writers know this.

In a murder case, the time of death is critical, because it can prove a defendant’s innocence. If a defendant can prove where she was at the time of death it’s an alibi—an affirmative defense. In many cases, an alibi can completely exonerate a person even before charges are brought.

In most cases, of course, defendants are unable to prove an alibi—not because they’re guilty but because many people are alone most of the time and most people are alone at night—asleep in bed. (Heaven help the defendant who’s accused of committing murder at midnight! Think Juan Mendez, Jr.)

Black Widow Alibis

In the Schreiner case, the defendant had a solid alibi for most of the morning (I think I recall she could document her whereabouts from about 9:00 a.m. to about 11:30 a.m.), but—coincidentally I’m sure—the medical examiner testified that the time of death was after 11:30 a.m. when the defendant was home and later found her husband bludgeoned to death in the driveway at 12:30.

In another so-called “Black Widow” case (the Raynella Dossett-Leath case) the defendant was also accused of having tried first to kill her husband with an overdose of barbiturates and then, when that didn’t work, of staging his suicide by gunshot. She also had a solid alibi for roughly the same time period. At around 11:30 a.m. she discovered her husband’s body in bed with a bullet hole in his forehead. And again—coincidentally I’m sure—the medical examiner testified that the time of death was early morning (before 9:00) when the defendant admitted to have been at home.

No Liver Temperature

In both the Schreiner and the Dossett-Leath cases the medical examiners failed to take a liver temperature before the body was refrigerated. As every mystery writer knows, liver temperature is often the single best indicator of time of death, because both rigor mortis and lividity can increase and subside before the body is discovered, but core body temperature only decreases—and decreases at a relatively predictable rate. In addition, the deceased person’s state of health (good or poor circulation, for instance) can affect both rigor mortis and lividity.

The Schreiner Time of Death

During the Schreiner trial a great deal of testimony had to do with time of death and the alibi. Eventually the defense attorneys managed to elicit an admission from two physicians that no liver temperature was taken. Unfortunately, the defense failed to hammer the implications of this fact home to the jury.

Briefly, the testimony was:

The body was found at around 12:30 outside in the sunlight. The first responder, an EMT, said he had to “crack the jaw” of the victim in order to administer CPR and attempt resuscitation (indication that rigor mortis had begun to set in—in a cold environment this might indicate that death had occurred only about 30 minutes earlier, but in the warm environment it might indicate that death occurred up to two hours earlier).

The first medical examiner on the scene was a volunteer; in fact he just happened to be the victim’s personal physician. While trained to take a liver temperature at the scene of a death, he decided not to do so, because (he said) he didn’t want to upset the deceased’s loved ones who would be looking on (as if they wouldn’t be upset by his bashed-in skull). He also said that there was no rigor mortis present. He had been able to manipulate the jaw easily (of course, the EMT had released it). This physician’s testimony was relied upon by the county medical examiner, who also didn’t take a liver temperature.

The county medical examiner who conducted the autopsy many hours later testified that the time of death could not have been before 11:30, because there was no evidence of rigor mortis when the body was found. Even taking into account that the environment was quite warm, and even though it had lain in the sun for quite some time, he insisted that rigor mortis would not have been present at 1:00 p.m. when the first physician examined the body.

However, it is well known that onset of rigor mortis can be delayed as long as two hours when the body is in a very warm environment.

Obviously, the victim’s time of death in this case could not legitimately have been pinned down to after 11:30, when the EMT had to crack the jaw at 12:30. Since the environment was warm, the time of death could have been as early as 10:30. Had the first medical examiner taken a liver temp
erature, he might have collected far more-accurate data. Instead, the county medical examiner conveniently insisted to the jury that the defendant’s alibi was worthless, because he was sure the time of death couldn’t possibly have been before 11:30.

The Dossett-Leath Time of Death

In the Dossett-Leath case, the defendant had an alibi from about 9:00 a.m. (after breakfast) to 11:30, when she called 911. An hour later, at about 12:30 a police investigator telephoned the medical examiner’s office to notify them of the death. Apparently, no medical examiner ever responded to the scene and, instead, the body was transported to the morgue for the autopsy a couple of hours later.

At the morgue, the medical examiner did not even conduct a superficial examination of the body to determine rigor mortis or lividity at that time. The body was refrigerated and at 8:00 a.m. the next morning was removed and the autopsy conducted.

The autopsy report describes the rigor mortis at that time as present “to an equal extent in all joints” and lividity as “fixed and well developed.” This is hardly surprising given that at least 21 hours had passed and the body was in a refrigerator for at least half that time. The report makes no mention of a core body temperature or a liver temperature.

Nonetheless, at trial the medical examiner declared to the jury that the time of death was before breakfast—just coincidentally at a time for which the defendant had no alibi.

Sidebar: I wrote recently about the revolver found in the deceased’s hand; it seemed to me as if the cops must have removed it from his hand before they called the medical examiner’s office. Subsequently, the defense attorneys discovered that the cops had, in fact, removed the gun. Now that I’m thinking about time of death, it occurs to me that this might indicate something about the degree of rigor mortis at the time the body was discovered. The finger and hand joints are among the first to grow stiff in rigor mortis (it begins in the head area). If the gun was easily removed from the hand, would that indicate the death was recent? At least within the past two hours? And that rigor mortis had not yet commenced?

Black Widow Alibis

I know, two data points (two trials and two MEs) do not make proof, but I think it’s very strange the way female defendants’ alibis can be disproven by autopsies that don’t really address the physical evidence of time of death.

The medical examiners in these two cases aren’t the only MEs who seem to play fast and loose with time-of-death findings. But in both these cases, female defendants were found guilty, despite their good alibis, in large part because the MEs set the time of death at a time not covered by the alibi. Is it just me? Or does this sound as if the MEs talked to the police before they decided on a time of death?

Texas v Baker—A Mistress Named Bull?

What is it about a pudgy former minister that could attract a beautiful woman like Vanessa Bull? This isn’t a rhetorical question by any measure, but the answer is obvious anyway: most women have incredibly low self-esteem.

CNN’s In Session is covering the January trial of a former Texas minister named Matt Baker in which he faced charges of murdering his wife and trying—inexpertly—to stage it as a suicide. As I understand it, Mrs. Baker—who was herself very pretty, although older than Ms. Bull—had been depressed over the death of one of her children when she learned of her husband’s affair. As a result, allegedly, she became suicidal.

Whether or not Matt Baker really killed her, Mrs. Baker’s response to discovering the affair is what tells me how it can be that a pudgy, middle-aged man can attract two such attractive women is: women generally have very low self-esteem.

The Suicide Note

In this case, what interests me the most, though, is the supposed suicide note. If I were a juror on this case, much would alert me to the lack of reasonable doubt in this case, but the single most telling piece of evidence is that note.

Several aspects of the document stand out: 1) it was written on a computer and printed; 2) it was an apology to her surviving children and husband; and 3) the prosecution’s fingerprint expert’s testimony was excellent—I can’t praise her too much (and I almost never like prosecution witnesses).

1) Who takes the time to print out a suicide note when you’re suicidal and have taken or plan to take an overdose of drugs? No one. It’s too impersonal. You want your final words to be in your voice, and your handwriting is a personal expression, while a print-out is not.

2) I have a theory that anger is the essence of depression, and suicide is the ultimate angry act. I’m not saying that the people a suicide leaves behind are guilty of something that incites the anger—not at all. But I do think that depression comes from an inability to express anger, and it turns inward. So, I can’t believe most suicidal people write apologetic notes.

Sidebar: A simple Google search on “studies of suicide notes” turns up an interesting list of academic work on the content of suicide notes. I recommend you try it. I knew that suicide notes are relatively uncommon, but I was surprised to find 750,000 results in the listing. I suppose I should have expected there to be a huge number of studies of suicide notes, as a former English teacher. Everything that’s ever been written has been analyzed, dissected, interpreted endlessly by all us English majors. Really, there’s nothing left for literary critics to write about.

3) The prosecution’s fingerprint expert used exactly the right rhetoric, in my opinion. She was clear, thorough, and genuine (as opposed to artificial, as are most investigative witnesses). The prosecutor attempted to get her to cite bogus statistics as a way of proving the defendant could have handled the note even though his fingerprints weren’t found on the note.

Specifically, the expert said she could eliminate several reference prints from having contributed to a smudge on the paper. Apparently she had 19 reference prints to work with, including the defendant’s and the police officers’ who responded to the 911 call. All but one of these could be eliminated as having made the smudge because of a single distinctive feature of the smudge. Clearly, the defendant’s sample could not be eliminated, but the expert refused to say—as the prosecutor tried to lead her to do—that the defendant could have been the person who made the smudge. The expert said she only had 19 samples. She had no way of knowing who made the smudge. Essentially what this expert did was refuse to use that ghastly phrase, “The defendant’s prints could not be excluded.” Bless her!

Computer Forensics

The fact that the note was printed from a computer clearly suggests that computer forensics might have been used effectively to prove or disprove the deceased woman wrote the note. Apparently, though, the investigators accidentally turned on a laptop before the data was collected from the hard drive.

More investigative idiocy: the investigator didn’t realize you can start up a laptop just by opening up its screen. And the prosecutor—not unexpectedly—couldn’t understand what’s wrong with this, namely, that every time you start up a computer you write new information to the hard drive and can overwrite old data that might be relevant.

Let’s face it: all lawyers, not only prosecutors, need to go back to school and learn something about math, statistics, technology, and the scientific method.

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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).

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.”


Scientific Methods of Medical Examiners–Part 2

Scientific evidence is rarely presented well in court. More often, highly technical data is presented in a “dumbed-down” form that lawyers seem to think jurors require. But the biggest problem is that expert witnesses for the prosecution are presumed competent and trustworthy.

Unfortunately, scientists like the rest of us, sometimes make mistakes, are careless, have biases, or are just plain incompetent. Medical examiners are among the expert witnesses most prone to these failings, in my non-lawyer, non expert opinion.

A Medical Examiner Who Works Backwards

The ME who conducted the autopsies in three televised trials exemplifies for me the problems of scientific presentations in court. I think of her as the Serial ME—one homicide after another. She never lets a gunshot death pass for anything but first-degree murder.

The Serial ME turns up on CNN’s In Session frequently, partly because she works in Tennessee, which is among the few states to permit cameras in courtrooms, and partly because she’s photogenic. Unfortunately, she doesn’t “put on a good show,” in my opinion. And she would not appear on TV if it weren’t for the frequency with which she deduces first-degree murder in gunshot deaths.

Trial of John Collett

In 2009 John Collett was charged with murder for shooting an angry, gun-toting trespasser who threatened his parents and him as they stood on their porch. The Serial ME declared the death to be a homicide and testified dramatically with the use of a mannequin, dowels, and the four-wheeler the deceased had driven onto Mr. Collett’s property.

Death by multiple gunshot wounds, of course, must always be investigated as a possible homicide. The circumstances in the Collett case clearly indicated it was not a suicide, and since a hominid must usually pull the trigger on a gun in order for a bullet to emerge from the barrel and find its way into another hominid’s body, a finding of homicide as the manner of death was reasonable.

The medical examiner went beyond this conclusion in her testimony, however. And this is what I find fault with (and apparently the jury did, too, because they found Mr. Collett not guilty). She claimed to prove that the weapon the trespasser waved in Mr. Collett’s face was pointed barrel-to-the-sky when he was shot—based on the trajectory of the bullets in the body. In other words, she testified that she knew for a fact the death was first-degree murder.

In any gunshot death the trajectory of the bullets is an important element of the autopsy evidence. In the Collett trial, the Serial ME demonstrated for the jury the trajectory of several bullets (five, I think) by inserting long dowels into a mannequin that was seated in the four-wheeler (which supposedly wasn’t in itself admitted into evidence). Of course, the path of a bullet through a body is only part of the evidence needed to show the bullet’s trajectory, because a body can be in many positions when the bullet enters it.

Sidebar: How a judge could permit a four-wheeler into a trial court without admitting it into evidence is a mystery to this mystery writer. I would hope that in the event of a conviction the appeals court would have overturned the verdict based on this error alone.

One of the bullets, according to the Serial ME, entered the deceased’s right arm (which was holding a fairly heavy weapon) at the elbow and then passed through the elbow and reentered the upper arm. She also testified there was no way this trajectory could have occurred unless the arm was raised above the head (in other words, she thought she had proved the killing was not in self-defense).

The ME made several assumptions about the shooting, which an autopsy could not possibly suggest, let alone prove.

For one thing, she assumed that one bullet struck the body while the man was still seated on the four-wheeler. That could only follow from an assumption that the bullet was the first one fired. Even if the body was still seated, the trajectory could have resulted from a bullet impacting as the man swung his gun around toward Mr. Collett: imagine holding your arm roughly at waist height with your forearm across your body, bent, and with your elbow at an angle perpendicular to Mr. Collet’s gun barrel.

She also testified that one bullet could only have been fired when the body was already on the ground. Again, she made unjustified assumptions about the order in which all the bullets were fired.

There’s no way an ME can tell the order of most gunshots based solely on the path of the bullets through the body. I suppose some such conclusions can be drawn in some circumstances. If paths cross inside the body or if two bullets follow roughly the same path, it should be possible to conclude that one was fired before the other. But in this case, there were more than two bullets and more than two paths. Blood flow might also prove that a bullet was fired after death, but that was not what happened in this case.

Finally, the Serial ME testified to the rapidity of fire. She concluded that it took a very long time for all the bullets to be fired—implying that each bullet was fired deliberately and with an intent to kill. Yet the gun in question was a semi-automatic pistol that fires rapidly. How could an ME possibly conclude anything about the rapidity of fire in any case?

It was as if the Serial ME wanted to prove the defendant guilty of first degree murder. That’s the prosecution’s job, not an ME’s.

Trial of Eric McLean

Like John Collett, Eric McLean was charged with first-degree murder in Tennessee. His high-school-teacher wife’s teenage lover came onto his property, and Mr. McLean threatened him with a gun (a rifle or shotgun of some sort). In the trial, Mr. McLean claimed he did not intend to pull the trigger; the gun discharged accidentally.

The Serial ME testified there was no way the gun could have discharged accidentally. It had to be intentional. That’s the prosecution’s job, not the ME’s. And, like the Collett jury, the McLean jury did not buy the ME’s claims.

You might wonder how an ME could testify about weapons and ballistics. I suppose she could have based her conclusion on the average muscle strength of the human finger or something.

You might wonder how an ME could infer the intention in the mind of someone who held a gun. I suppose she could have read the defendant’s mind.

Sidebar: I don’t remember all the details of the ME’s testimony, but I think she may have staged a demonstration with the gun in the courtroom in this trial, too.

Trial of Raynella Dossett-Leath

In 2009 Raynella Dossett-Leath was tried for the murder of her husband. The Serial ME testified that the deceased could not have committed suicide for two reasons: 1) he had such a high level of barbiturates in his system that he would have been unconscious when he died, and 2) three shots were fired but the second shot killed him.

The ME’s “Report of Investigation by County Medical Examiner” (dated the day after the incident) is available online. It summarizes the case, but does not include any reference to the drugs in the victim’s system, because (as I understand it) that finding came much later, after a b
lood sample was sent to the TN state crime lab, which has since lost the blood sample.

The report exhibits the same leap to a conclusion of homicide that the ME made in the Collett and McLean cases.

However, the Serial ME’s role in the prosecution of Ms. Dossett-Leath is so extensive and complex, I need to discuss that case in another blog post.

To be continued …

Scientific Methods of Medical Examiners—Part I

If jurors are subject to public scrutiny and criticism, then surely medical examiners who identify homicide victims—and as a result force private citizens into the jury box at murder trials—must also be subject to public scrutiny and criticism.

In this era of televised trials, the cameras rarely turn on the jury; but they often focus on the witness stand where expert witnesses, including MEs, sit. Some MEs’ faces turn up on TV more often than others.

If there were a Sidewalk of ME Stars in Atlanta (where CNN’s In Session originates), one cement slab would surely be devoted to a female Tennessee medical examiner with a long, difficult-to-spell name. Because her name is so long, and because I’m not comfortable criticizing most forensic experts (I’m not a lawyer or forensic expert), I’m going to omit this woman’s name.

Problematic Science in Court

It may simply be a coincidence that a certain ME has testified in three trials that exemplify for me the problems with scientific presentations in court: the trials of John Collett, Raynella Dossett-Leath, and Eric McClean. But it seems unlikely to be a coincidence that each of these defendants is free today (at least free on parole or bond). Each trial had an outcome unfavorable to the prosecution for which this ME testified. Mr. Collett was found not guilty, Ms. Dossett-Leath’s trial ended in a hung jury, and Mr. McClean’s trial ended in a conviction on minor charges and a sentence of parole.

Science in Court for the Finders of Fact

In American law, the jury is the “finder of fact,” not the cops, not the prosecutor, not the judge.

Sidebar: This isn’t true in most countries. The issue is complex, and I will tackle it soon, but not now.

What “finding fact” means is that the jury examines the evidence and decides which of it is valid and which is not. In a murder trial this includes the ME’s testimony as well as autopsy photos and possibly the autopsy report. (I believe in many trials, the written autopsy is referred to by ME witnesses but never given to the jury.)

Ideally, an ME conducts every autopsy according to the “scientific method.” The method is a series of steps:

  1. Pose a logical sequence of questions about a physical phenomenon (such as, What was the “cause of death?” What was the “manner of death?”)
  2. Conduct background research (such as analyzing blood and stomach contents)
  3. Construct a hypothesis (using Ockham’s Razor, that is, the simplest explanation is usually the truth)
  4. Conduct an experiment based on the hypothesis
  5. Analyze the results of the experiment
  6. Draw a conclusion and support it with the experimental data

Note that the first step is to list all the reasonable questions. An ME must begin by questioning the cause of death and not jump immediately to the question about the manner of death. An ME must know what killed a person before she can declare the manner of death to be a homicide. Research must first be conducted into the cause of death, hypotheses tested, data analyzed, and conclusions drawn before asking the question: Was the cause of death natural, accidental, suicide, or homicide?

The final step in the scientific method is designed to communicate and persuade others of scientific conclusions. What that means for an ME is that the autopsy report must be persuasive and, in the case of homicide, must convince a jury.

Sidebar: I believe most jurors don’t understand that all science is subject to review and contradiction. Non-scientists don’t understand that scientific truth changes and evolves each time new experiments are conducted and new conclusions are reached. In other words, scientists require good rhetoric as much as a trial lawyer does.

Rules of Evidence

In most criminal trials, the prosecution must justify each of its items of evidence to a judge before any evidence can be presented to the jury. In America, the judge doesn’t declare items of evidence to be valid—only to be admissible and relevant under a very complex set of rules.

These “rules of evidence” derive from decades and sometimes centuries of common law and case law. None of the rules involve the scientific method.

A 1990s era Supreme Court decision, Daubert v. Merrell, attempted to banish “junk science” (evidence not deemed scientific by the science community) from courts. Unfortunately, the decision did not address the issue of experts who purport to be practitioners of legitimate scientific disciplines, but who—either carelessly or intentionally—fail to adhere to the scientific method.

Sidebar: For example, in 2002 a Bell Labs physicist, Jan Hendrick Schon, was discovered to have falsified data and claimed to have developed an organic transistor when he had not. If his claim had been true, it would have destroyed most of Silicon Valley and consequently a major segment of American industry. It was all a lie, and his fellow physicists did not discover the fraud through the much-vaunted “peer review process” until a young researcher noted that Schon had presented identical data sets as evidence of different conclusions.

In a murder trial, the autopsy or ME’s testimony is always admitted into evidence. The law does not contemplate the possibility that an ME would falsify an autopsy report or fail to adhere to the scientific method.

Autopsy Protocols

Well-known, standard procedures govern the conduct of an autopsy (Midwest Autopsy has a nice, clear description of the steps in an autopsy). The autopsy itself is step 2 in the scientific method, the background-research step.

Perhaps the most important step in an autopsy—certainly in homicide cases—is determining the time of death. ME technicians collect evidence of this at the place where a case of suspicious death occurred. In the body they note rigor mortis, livor mortis, and should also take the liver temperature. If they do not take a liver temperature at the scene, then the ME should take the temperature as soon as the body is received in the morgue. Failure to do so can cause a suicide to be identified as a homicide and the wrong person to be identified as a murderer simply because she doesn’t have an alibi.

The medical examiner must not approach an autopsy with an intellectual bias toward either the cause of death or the manner. As Dr. Friedlander of Midwest Autopsy notes, “At least a fifth of autopsies reveal a cause of death other than w
as believed clinically.”

The autopsy report and death certificate comprise the final step in the scientific method, the argument and persuasion.

CSI Involvement

In cases of suspicious death the police will take custody of the body, rather than a physician. Police crime-scene investigators will collect evidence from the body and around the place where it was found. Then, after the body is received at the morgue, either an ME or a crime-scene tech will remove all clothing and preserve it and will collect further hair and fiber evidence.

In such cases, the detective in charge of the investigation into the suspicious death will attend the autopsy (or should) to ensure that the ME doesn’t overlook anything or make obvious mistakes. The ME and the detective may discuss the circumstances under which the body was found. This discussion becomes part of the ME’s research. It also tends to guide the ME to ask questions and pose hypotheses.

Clearly, this police information has the potential to bias the ME. This is apparently what happened in the investigation into the death of Sgt. Drew Peterson’s second wife, Kathleen Savio, for instance. A good ME, of course, will resist the temptation to jump to conclusions. (It’s notable that the Savio autopsy was conducted by a pathologist, but the initial, mistaken cause of death as accidental was determined by a coroner’s jury.)

Put simply, nothing in criminal law prevents medical examiners from making mistakes or presenting false information to a jury.

In Part II I will examine a certain medical examiner’s testimony in three murder trials.

Casey Anthony “hoist on her own petard”

For the moment, please accept my definition of “petard” as a “weapon.” (The word has a rich etymology.)

Yesterday CNN’s InSession presented a nice survey of the “capital or otherwise infamous crimes” most likely to dominate legal news this year. At the head of the list was Casey Anthony.

I have no doubt that the Anthony case will be our next trial of the century, because Ms. Anthony is incredibly photogenic. Before being caught up in a sensational child murder, she appears to have realized this and to have tried to worm her way into the club scene in Florida and to have claimed some sort of entertainment-world connection by lying that she worked for Disneyworld or Universal. (It isn’t really worth being too precise, because Ms. Anthony had no visible means of support and no real connection to anything of substance.)

Now her good looks are being used to skewer her. It’s not only that the jail where she’s housed has the legal right to record her every move, it’s that in Florida a “sunshine law” permits the justice system to release all these tapes to the media, and as a result the entire country is forced to watch endless video of Ms. Anthony whining to her parents.

Courtroom Gambits

As I have said before, IMHO (and I am not a lawyer) the prosecution in a criminal trial no longer has the burden of proof. The burden has shifted to the defense because of so-called “scientific evidence,” which forces a jury to assume the truth of the accusation as a premise to be undermined by the defense.

Despite this obvious situation, courtroom rules remain unchanged. The prosecution speaks first and last.

A criminal trial is governed not by the U.S. Constitution and Bill of Rights; it’s governed by centuries’ old traditions, known as common law and “the rules of evidence.” The common law derives ultimately from principles established by the Greeks, the Romans, and medieval feudalism. The rules of evidence derive from a pre-modern understanding (or misunderstanding) of natural laws and processes.

Casey’s Case

The Bill of Rights: Casey Anthony’s name was a household word long before her daughter’s body was ever found, and it wasn’t because anyone believed her child had been kidnapped. She was convicted of murder in the media (without “due process”). She has not been indicted by a grand jury (“No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”).

  • Sidebar: Please donate to Wikipedia.

The Supreme Court: Casey Anthony’s family has been scrutinized and vilified in the press despite liable and slander laws protecting people who are not public figures. She has been subjected to more adverse pretrial publicity than Dr. Sam Sheppard ever was.

The Burden of Proof of Innocence

Once the Anthony case goes to trial, it will be the defense’s burden both to prove that the prosecution’s case is severely flawed and to prove that Anthony is innocent of murder (they may have to admit child abuse and neglect). But she is not the first defendant who has had to overcome that burden. I believe most defendants have that problem.

Once in court, Anthony’s attorneys will have to be incredibly clever in the way they approach the jury—never mind their problems with the judge and the vindictive prosecutors. They have it in their power to make the jurors their allies or their enemies. And, IMHO (non-lawyer) the last defense they should use is “reasonable doubt.” (That’s the way to alienate the jury.)

To overcome a jury’s inclination to believe that the cops caught a bad guy and the state is prosecuting a bad guy, a defense must present:

  • a complete and coherent story.

A Complete Story

Aristotle taught us what a complete story is: it is a story with a beginning, a middle, and an end. Until I started writing fiction, I didn’t really understand the wisdom of this incredibly simple statement.

  • A beginning is “why” as well as “when.”
  • A middle is “what happened next.”
  • An end is “how” we got to this final place, the court.

A Coherent Story

Coherence comes from the “why,” the sequence of events, and the “how.”

Casey Anthony’s defense must tell a complete and coherent story to the jury—not to the prosecutor or the judge. The story must be both Casey’s story and her daughter’s story. They must present a substantial defense with at least one witness to contradict each prosecution witness. The defense must tell a believable story, even if the story doesn’t paint Ms. Anthony as a loving mother. (IMHO, it would be a big mistake to try to make her out to be sympathetic in any way.)

Yes, the defense must rigorously cross-examine every prosecution witness to plant the seeds of reasonable doubt in the jurors’ minds about the quality of the police investigation. And, yes, the defense case must put on expert witnesses to contradict all of the prosecution’s “forensic” evidence.

But in the end, what the jury is really going to want to know is: What was Casey Anthony doing in the 30 days before her mother called 911? 

The prosecution seems to be believe that what Ms. Anthony did was party, that she didn’t think anyone would notice that her child had vanished. But this is an incomplete and incoherent story in itself.

It’s almost impossible for this former juror to imagine that a young woman would be partying and expect no one to notice that her child had vanished. So, it should be possible for the defense to present a believable story, if they don’t cling to the arcane principles that guide most courtroom presentations these days.

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