The Amazing, Vanishing Judicial System in America

Yesterday, the U. S. Department of Justice announced it will no longer defend the Defense of Marriage Act, because it is not (in the opinion of the Obama Administration) Constitutional.

  • Viewer Warning: No one will agree with the opinions I express here. No one. Not my closest associates, not my family and relations. And certainly not my husband.

What’s so sacred about marriage?

I don’t think any sane person should want to get married, because marriage isn’t a legal contract or a human right—it’s a religious rite and cultural custom. If I were gay I would prefer to make a contract with my partner, a contract that truly protects my human rights and my equality in the relationship. Marriage laws in America uphold a strictly patriarchal social relationship. Birth fathers have more rights than birth mothers. Husbands are named “the head of the household.” Men on average make more money than women. In other words, marriage is not an equal partnership.

Furthermore, it’s a myth that gay couples have fewer rights than heterosexual couples. One of the most common abuses of gay human rights cited is the right of a partner to attend the bedside of a gravely ill hospital patient: this is a myth. Anybody can attend the bedside of a gravely ill hospital patient, including complete strangers. I have seen this with my own eyes.

What else are gays deprived of? I can’t think of anything other than “don’t ask, don’t tell,” and that has nothing to do with marriage. Gays can adopt children. Gays can bear children. Gays can jointly own property. Gays can will their property to anybody they want.

What don’t gays have the right to—other than a “right” to call each other “husband” and “wife”? Divorce.

The only thing gays would “gain” through marriage is the need to go to court to dissolve their marriage. Then a judge would decide who gets what property and who gets custody of the kids. Is this what you want?

Marriage is essentially a religious concept. It is to religious leaders that gays should apply for marriage rites, not the government.

Goodbye, Supremes!

Oddly enough, by means of the Defense of Marriage Act the Congress granted the courts the right to make all the decisions in the dissolution of marriage. Now, to void the Defense of Marriage Act, the President has taken the issue out of the hands of the courts.

So when did the President gain the right to declare legislation Constitutional? I thought that was the role of the Supreme Court.

  • Sidebar: Yes, I know that President Lincoln issued the Emancipation Proclamation without regard to the “separation of powers.” But that was an act of war against some of the States, an outright voiding of the Constitution. Lincoln’s proclamation (NB, not a voiding of a law) did not become law as a result of his Attorney General deciding not to defend the law; it did not become law as an automatic result of the Civil War; it became law only when the Congress and the People amended the Constitution.

It seems to me that President Obama is waging war against the Supreme Court. This statement declaring a law unconstitutional is his version of a proclamation attacking the independent judiciary.

But they must have seen it coming. First there was the unprecedented appointment of the U. S. Solicitor General to the Court (that is, the chief lawyer-advocate for the Administration against the People and the States in front of the Court). Then there was the verbal attack during his State of the Union Address. Then there have been several delaying tactics to prevent disputes with the States from reaching the Court (the AZ illegal-alien situation and the dispute with Texas over EPA regulations that co-opt State regs). The Administration is delaying the issue of Obama Care in the lower levels of the federal courts, rather than facilitating a Supreme Court decision.And now the Administration has declared it won’t pursue cases in the federal courts concerning the Defense of Marriage Act.

  • Sidebar: I wonder if the fact that Justice Kagan as Solicitor General for the Obama Administration told the Supreme Court that there is no Constitutional right to same-sex marriage has anything to do with the Administration’s reluctance to let a case reach the Supreme Court?

Vanishing Justices

It’s conceivable that within a few years, no cases will make it to the Supreme Court other than those which the then-sitting President feels will be decided in his favor.

But it’s nothing new: this will only continue the decades-long diminishment of the role of the courts. As things stand now, civil litigation involving businesses is skewed in favor of the plaintiffs by the practice of shopping for favorable judges. Criminal trials are dominated by legislative restrictions on judicial discretion and by politicized prosecutions. Juries no longer play the role for which they were invented millennia ago: even judges try to dictate to the jury, and if a jury hangs it’s likely to be subject to penalties for “jury misconduct.”

This isn’t a good trend.

Graham v Florida—Many journalists didn’t even get the vote count right

Yesterday, the first story I read about the monumental U. S. Supreme Court decision (Graham v. Florida) claimed the decision was 5-4, with Justice Kennedy writing the court’s decision and Justice Thomas writing the dissenting opinion. Without reading further, I assumed this represented the usual liberal-conservative split.

Today, articles correctly called the decision 6-3, but I doubt you’ll hear any intelligent coverage of the decision beyond this. The 6 concurring were actually 3 separate opinions and the 3 dissenting were actually 2 separate opinions for a total of 5 separate opinions, not 2 (pro and con). I recommend you read the complete decision and dissenting opinions in Graham v Florida, because the case strikes at the heart of the Bill of Rights and of the entire concept of common-law juvenile justice.

On Monday, the Supreme Court also issued a monumental decision in United States v. Comstock et al. in which recent Justice nominee Elena Kagan, Solicitor General, had argued for the federal government that not only the mentally ill but also the “sexually dangerous” can be held indefinitely to protect the public. (FYI: This was the first I’ve heard that the federal government can indefinitely suspend habeas corpus rights of the mentally ill.) The Comstock decision was 7-2, comprising 2 concurring opinions and 1 dissenting opinion.

Simple math tells you that something is going on here other than all the usual suspects voting for “strict constructionism” against the majority liberal interpretation of the Constitution as “a living document.” In fact, conservative Chief Justice Roberts joined the liberal majority in both these decisions, and only Thomas and Scalia dissented in both these decisions.

The media are doing the cause of justice in this country a very, very great disservice by failing to read Supreme Court decisions carefully before they report superficially on them.

Both the decisions are written in English. Both are filled with rich detail on the issues involved. Please read them.

Of great interest to this non-lawyer, non-judicial, former juror is that both of these decisions impact the judiciary and prosecution—not the jury system. The Graham decision prevents judges from permanently depriving juveniles of their liberty and the Comstock decision permits federal prosecutors and judges to permanently deprive sex offenders of their liberty.

Here’s my concern: As long as a convict has a valid birth certificate and can prove he or she is a juvenile, the convict’s rights are protected, but as long as the federal government can find a psychologist to declare a convict to be “sexually dangerous,” the convict is screwed (of course, maybe that’s appropriate).

Jury Reform—The End Is Near (Part 2)

Amendment V of the U.S. Constitution

“No person shall be held to answer for a 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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment of the Bill of Rights is the basis of our criminal justice system. The Sixth Amendment is the basis of our jury system: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” Yet today the states have all enacted laws that directly contravene both of these Amendments, and the U. S. Supreme Court has upheld many of these laws.

Few states require a grand jury indictment for murder. Every state permits a defendant to be tried more than once for murder if the trial ends in a hung jury (proof the prosecution did not prove its case). No state compels defendants to testify, but all states permit the prosecution to prevent defendants from testifying by charging them with multiple, unrelated crimes about which they would be compelled to testify if the charges were not brought. Defendants are routinely deprived of property that’s used as evidence in a case, and many states deprive convicts of access even to their own DNA for purposes of exoneration. Speedy trials are impossible in the over-crowded, under-funded court systems. Sensationalized, media coverage makes impartial juries impossible. And nation-wide, mass-media coverage often makes it impossible to conduct trials in the district where the crime occurred.

I know of one person who was “held to answer for a capital, or otherwise infamous crime” without a “presentment or indictment of a Grand Jury” when it was not a “Time of War,” was “twice put in jeopardy of life or limb,” was “compelled” NOT to testify because of another, pending indictment, and was deprived of “property, without due process of law.” In addition, it took several years to convict her. Local media labeled her a “Black Widow.” After the charges were filed, the state went back more than 20 years to the tragic death of her first husband and trumped up a second murder charge against her.

Look at Casey Anthony, if you need another example.

Jury Reform Is Long Overdue

Visit for an excellent survey of jury-reform ideas. Recently the English have been considering serious jury reform, although their system already avoids some of the problems of ours: the unprofessional nature of juries (no preparation, laughable pay), one-trial jurors, need for unanimous verdicts, and wasting time and money by keeping a large jury pool locked in the courthouse for an extended period of time despite never being called up for a trial.

Many people have called for “professional juries” and proposed reasonable schemes for achieving this. For example, given the high unemployment rate now, it would make good sense to draw jurors from the lines at the Unemployment Compensation offices, and given the growing population of retirees to draw them from the Social Security rolls.  These people could be called up for extended periods, could serve on more than one trial, could be adequately compensated and thoroughly trained.

The issue of training is problematic, though, since the courts (as explains) are bound and determined these days to violate the Bill of Rights by telling jurors completely erroneous things about what they are entitled to know and to do.

So What Else Is New?

Systems, just like living organisms, inevitably become more and more complex until they succumb to entropy. Soon decay sets in.

The Constitution, though, is NOT A SYSTEM. It’s a beautiful expression of some fundamental social principles. Jury reform DOES NOT REQUIRE a new law or amendment. All we need in order for jury reform to occur is for the U. S. Supreme Court to reread the Bill of Rights and overturn these illogical, unfair state laws:

  • The State should not be able to prosecute a murder (of any degree other than manslaughter) without a grand jury indictment.
  • A hung jury should be accepted as a not-guilty verdict to prevent double jeopardy, or more than a true majority (2/3) should be sufficient for any verdict except in a death-penalty case.
  • The State should not be allowed to hold charges over anyone’s head for longer than a year or 18 months at the most. No one can sustain the costs entailed in a lengthy defense, especially since a defendant’s livelihood is inevitably impacted by prosecution.
  • Defendants should be permitted to testify without reference to prior convictions or pending charges.
  • The State should not be allowed to keep evidence (private property) away from a convict.
  • The State should not provide information to the media for any purpose (Freedom of Information Act or not).
  • If a media outlet chooses to cover a trial, it should be prohibited from commercializing the coverage (such as CNN’s TruTV trial coverage, which is interspersed with commercials for their own programs, such as ones featuring the idiotic behavior of drunks and fools jumping into basketball hoops).
  • Change-of-venue requests should be automatically granted.
  • An impartial jury need not be an ignorant jury; it must, though, be a jury of people who have no stake in the outcome of the trial and who have no relationship with the defense, prosecution, judge, police, or victims. If we followed the English example of forming juries for the purpose of serving on more than one trial, they would more likely be impartial.
  • Jurors should be voluntary, adequately compensated, and trained using materials designed by and paid for by the federal court system so that the materials correctly reflect the Supreme Court’s understanding of due process of law, not each trial judge’s personal opinions.

Speaking Freely

Yesterday the U. S. Supreme Court decided 8 to 1 to uphold freedom of speech and overturn a federal statute (18 U.S.C. Section 48) that criminalized audio and video depictions of illegal acts of animal cruelty unless the depictions had “a serious religious, political, scientific, educational, journalistic, historical, or artistic value.” (Ironically, in light of the recent decision on Campaign Finance Reform restrictions of political speech and Justice Alioto’s famous headshake, Justice Alito was the sole dissenting opinion).

Yesterday was also the day on which the judge (Judge Stan Strickland) presiding over the highly publicized, sensationalized trial of Casey Anthony recused himself, because he read blogs and communicated with a blogger privately. Judge Strickland’s recusal order used the phrase “self-aggrandizing publicity hound” ironically. And, indeed, it is ironic, since the State of Florida has videotaped Ms. Anthony in private conversations with her parents and then “released” the videos to the press to be plastered all over cable TV, copied and published Ms. Anthony’s personal correspondence, and permitted cameras to broadcast from the courtroom every time Ms. Anthony’s attorneys file a motion, including a motion to have her declared indigent, in which she had to reveal in public how she had paid for her constitutionally guaranteed right to a defense.

Freedom to “Depict” Crimes

The Supremes got it right in U. S. v. Stevens (above). Justice Alioto protested that it should be legal to outlaw depictions of patently (“facially”) illegal acts when the depiction’s only purpose is the illegality. I understand his argument that freedom of speech can be taken to a logically absurd conclusion such that all illegal acts could be committed if they are committed on camera.

However, the federal law in question stupidly permitted depictions of illegal acts when they have a “value” other than satisfying a sexual fetish. Get real, feds: Speech is only “free” if its value is not regulated.

Consider this real scenario from history: A man broke the law repeatedly and was repeatedly imprisoned as a result. While in prison late in his life, he wrote a book promoting his illegal conduct and urging others to adopt his illegal ways. The government subsequently banned the book because of its illegality. No one could legally publish it, reprint it, or sell it.

The man was John Bunyan. The book was The Pilgrim’s Progress.

Freedom to Discuss Crimes

As kids we’re taught the jingle “Sticks and stones can break my bones, but words can never harm me.” Of course, the jingle is a way of saying we ought not to worry about the slurs that people throw at us. But in every other situation, we’re taught not only that slurs are “torts” for which we can demand monetary compensation but that some words we’re forbidden to utter.

Most people fear free speech. That never surprises me. I honestly can’t count the number of times people have asked me if I’m worried that I’ll give someone information in my mystery writing about how to commit a crime. My answer is always the same: No.

If someone is so dumb he has to turn to my fantasies in order to figure out how to commit a crime, he’s too dumb to get away with it. But I was rather surprised when recently someone asked me to help exonerate a convicted murderer.

Since then, I’ve been researching the issues involved in writing about a crime from a prisoner’s perspective and discovered that there are quite a few laws against freedom of speech when it involves crime. For example, I’ve learned that any communication I might have with anyone involved in a court action is subject to subpoena. If I write about a crime, I can be judged to be in contempt of court if I don’t turn over all my research to any judge who’s curious about it. I can be sued by just about anybody who’s even tangentially involved in the events I write about.

For example, last fall the Cook County States Attorney subpoenaed all the notes of Northwestern University journalism students who exonerated a convicted murderer.

And then, of course, there’s always the risk that writing about “suspect” topics will lead any writer to be scrutinized by federal security agencies.

Freedom of Speech in Prison

If John Bunyan were in prison in America today, The Pilgrim’s Progress would not be published or sold. Most states have so-called “Son of Sam” laws that prohibit prisoners from profiting from their crimes in any way, no matter how tangential. Effectively this makes it illegal for a prisoner to write a book and publish it.

If Casey Anthony had written those now notorious letters as a memoir for publication, they could not have been released to the public.

But arguably the world would be a worse place today if prisoners had always been prohibited from publishing. The list of significant literature written by prisoners is very long. For example, an Amazon list compiled by Robert Moore has 21 titles, some of which are collections of other works.

Off the top of my head, I can add to this list:

  • Eldridge Cleaver’s Soul on Ice
  • Alexander Solzhenitsyn’s The Gulag Archipelago
  • Cavalier poets, such as Robert Lovelace (“stone walls do not a prison make”): In fact, in the 16th and 17th centuries virtually every English poet regardless of his politics or religion ended up in prison at least once. Shakespeare is the rare exception.

But now in America no prisoner can write a book, even if he or she maintains innocence and claims to have been wrongfully convicted. No one in prison can even write about what it’s like to be in prison (even though such a book might deter a few people from committing a crime). And few writers are safe in writing about a prisoner’s story either.

It seems to me—a non-lawyer—that freedom of speech is either absolute or not a freedom at all. The Supremes’ decision yesterday in U. S. v. Stevens is a tiny, baby step toward acknowledging that as a fact.

Forensis—Debate in the public forum

Forensic Science” is an oxymoron.

The adjective “forensic” refers to debatable issues, not reality—opinions, not fact. The noun “science” derives from the Latin word for knowledge; it was first used in 1833 by an English “natural philosopher” (Whewell) to distinguish natural philosophy from other philosophy (not coincidentally because poet Coleridge warned him that his methodology ought to be distinguished from what daydreamers do).

When an expert witness takes the stand in a trial and calls himself a “forensic scientist” it ought to be a red flag that what he’s preparing to do is testify about his credentials to practice an art and then to express highly subjective opinions.

The Supreme Court and DNA

Last week at the eleventh hour the Supreme Court stayed the Texas execution of Hank Skinner in order to take a little time to consider whether a convict ought to have the right to examine the DNA evidence used against him in court.

This ought to give us all pause—it seems so obvious.

Last year the Supremes declared that prisoners do not have the right to demand that the cops test DNA they have in their archives.

How can this be? What bizarre logic is at work here? It’s simple. As Shakespeare said, “The law is an ass.”

The issue in the 2009 case (Alaska v Osborne), as I see it (and I am not a lawyer), was that the DNA was not presented as evidence in court. I guess the Supremes consider the evidence cops have on file as the government’s property and it can’t be “taken” for private purposes (only the government can take for public purposes).

Sidebar: The Osborne case is worth at least an article on its own. But there’s one point I have to mention here. The Supremes’ decision expressed concern about a flood of frivolous lawsuits flooding the court system for post-conviction access to evidence. Couldn’t a Supreme Court decision have been phrased so that such access is automatic and no lawsuit would be required? I suppose the Justices are so law-bound in their thinking they can’t imagine an issue that can be settled anywhere outside of a courtroom. Here’s a clue, Supremes: Think outside the courtroom.

The issue in the Skinner case is that the convict isn’t demanding that the state spend money on the tests; he has found a lab willing to conduct the tests for free.

Honestly, I can feel my blood-pressure rising as I contemplate this. So I’m going to stop writing.

It’s time the Supreme Court woke up to the indisputable fact that a courtroom is not a forum where facts are presented. A courtroom is a public-opinion forum.

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Ask Not for Whom the Bell Tolls

It tolls for thee.

Last week an ordinary circuit court judge in Texas heard the bell toll and did something simple and good for us all. He refused to permit a prosecutor to try a defendant for capital murder. He said the obvious: Capital punishment denies a defendant the right of due process under the law.

Houston Judge Kevin Fine accepted a pro-forma pretrial defense motion in a murder case, which argued that the death penalty violated the Constitution. Texas Governor Rick Perry claimed Judge Fine was simply legislating from the bench, and now everyone is saying the judge’s ruling will be overturned on appeal.

In my opinion, and I am not a lawyer—just a mere citizen of the U. S.—it was neither legislation from the bench nor is it a slam-dunk to be overturned.

The Constitution makes the judiciary independent of both the executive and the legislative branches of government, in the states as well as the federal government. If a judge finds that any legislation violates fundamental principles of state or federal constitutions, then he is required to throw it out.

Judges constantly find fault with laws and make law through their decisions. Politicians seem to think they alone are entitled to make law; they never want anyone—including the people—to make law (witness the way Illinois politicians blocked the constitutionally mandated opportunity for a constitutional convention in this state or the way they complain about California’s “initiatives”).

If the Texas appeals courts understand the wisdom of Judge Fine’s decision, they will uphold it. After all, last year in Texas an executed convict was exonerated for all intents and purposes. Why should the courts enable future wrongful executions like that? The citizens and taxpayers of Texas ought to be worried about how horribly this distorts their justice system (and, besides, it’s time they took a look at the exorbitant cost of trying capital cases).

Let This Be the Last Toll

Like most obvious truths, apparently no one saw it until one person had an insight. I certainly didn’t. I was fixated on the issue of “cruel and unusual punishment,” a concept I believe is misunderstood by speakers of Modern Standard American English.

Obviously, as Judge Fine said, an irreversible punishment denies an innocent defendant of due process under the law. And every defendant is presumed innocent until convicted. But even if the presumption of innocence ceases when a person is wrongfully convicted, due process rights are not discontinued. Every convict is entitled to appeal, to beg for mercy, to be pardoned, or to have his punishment commuted.

From a juror’s perspective, capital punishment is grotesque. No one should be asked to decide whether someone else—who has done nothing to her—should live or die.

Worse yet, the law in this country requires a jury to decide the sentence in a capital punishment case, and those juries must first be “death qualified.” In other words, before the trial even begins, the jury has to swear to support the idea of capital punishment, which is a sure and certain sign the jury is inclined to convict defendants charged with murder. This is also a violation of a defendant’s right to due process. At most, there should be two separate trials—one for guilt and one for the sentence—with two different juries.

I pray that this decision will be appealed to the U. S. Supreme Court on a fast track and that the Supremes will acknowledge the wisdom of declaring capital punishment unconstitutional under the Fifth Amendment right to due process.

The justice system will be infinitely more just without capital punishment. While innocent people may still be convicted and sentenced severely, though wrongfully, at least they will have the opportunity to continue to pursue the due processes of the law from behind bars.


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Special Laws of Football—Richard Collier

Yesterday, CNN’s InSession began broadcasting a trial involving attempted murder of NFL player Richard Collier (Florida v Hartsfield). Despite CNN’s promise that “a jury will decide,” the trial took place in November and the jury has already decided.

But the verb tense isn’t what disturbs me about this case: it’s what the sordid tale says about sports in America these days. How many times do we have to hear about sports elites’ involvement in violence?

I’m not blaming Mr. Collier, the victim. I’m simply pointing out that every year more than one NFL player is involved in violence. They shoot themselves in the foot at a dangerous bar. They get shot on the back of a pickup truck. They get shot by their suicidal girlfriends. They torture dogs and go to federal prison. The list goes on.

Yes, even golfers and basketball players get in trouble, but right now I’m perplexed by the special laws of football.

Exempt from Anti-Trust Laws

Until yesterday I did not know that Major League Baseball is exempt from anti-trust laws, despite the fact that it is very major-league big business. In addition, it seems that the NFL has some exemptions from anti-trust laws and (according to Bloomberg) is now taking it a step further, all the way to the U. S. Supreme Court putatively over the sale of some embroidered baseball caps with football-team logos on them.

The NFL player’s union suspects that hats aren’t all that’s at stake: if the Supremes side with the NFL over the trademark issue, the NFL team owners may be able to “bust” the unions next season if they go on strike.

NFL Players Association

The NFLPA is a union. It must be one of the most effective unions of all time, given the incredible contracts NFL players, like Michael Vick, receive. If you’re in the union, you get paid a fortune no matter that you’re a convicted felon and a third-string player.

If the union is correct about the real purpose of the NFL’s trust-law complaint, then what the NFL owners intend to do is lock out the players next season, rather than permitting them to strike over plans to contain escalating contracts for rookie players. It’s a puzzle as to why the union is willing to strike over this issue, but that aside the NFL is on the verge of being the first Supreme-Court sanctioned mega-trust. (Actually, I think it’s probably the sports agents who have hoodwinked the union into wanting to strike.)

Who Is the NFL?

The NFL is a corporation owned by the owners of the 32 team franchises. Thirty-one of these are individuals, very wealthy individuals. Only one is itself a corporation, The Green Bay Packers, Inc. As a Chicago Bears fan (disappointed annually) the only good thing about the Packers, as far as I’m concerned, is that it’s democratic; anyone in Green Bay, WI, can buy stock in the team.

You See Where I’m Headed

There’s a reason why so many NFL players are criminals: as a society we have exempted their industry from every standard of decency and law. We celebrate not their skill but their income. If you live in Chicago you pay the Bears’ owners a fortune for the privilege of freezing your derriere off and watching sloppy play and asinine coaching–because you have no choice. The Bears owners have a monopoly on football in the nation’s “Second City.”

Florida v Hartsfield

I wish CNN had chosen a different trial for the first of the year. All it reminds me of—besides the failed Bears—is that certain industries in this country not only have managed to circumvent all the laws that govern the rest of us, but also that we no longer have any sports heroes.

The reason? Radix malorum est cupiditas.

  • Sidebar: I have to add that recently I heard a sports commentator claim that the only way an African American teenager can hope to “get ahead” is by playing sports. I guess he doesn’t know who the President of the United States is. But that isn’t surprising, either, since our society no longer values education, and the commentator is a product of our failed schools.
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Forensics Defined—The Public Debates Bloody Footprints

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

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

Debating Facts v Opinion

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

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

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

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

Forensics in Court

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

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

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

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

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

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

The Forensic Science of Footwear-Impression

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

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

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

Florida v Mendez

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

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

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

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

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

Graham v. Florida—When incompetent kids commit violent crimes

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

What are these lawyers thinking?

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

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

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

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

Mental Age

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

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

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

Does something sound wrong here?

Juvenile Justice

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

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

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

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

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

An Idea

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

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

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

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

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

L-WOP is possibly cruel . . .

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

L-WOP is possibly unusual. . .

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

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

But is L-WOP “cruel AND unusual”?

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

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

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

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

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

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


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

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

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

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


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

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