One might ordinarily expect that when a federal judge decides to publicly announce his intention to rule a particular way, he will do so.  This is especially true when it’s not merely the litigants in the courtroom, but the media as well.  But sometimes this doesn’t happen, and the only question one can ask is “why”?

Judge George Wu, when last we left him, had informed the government and lawyers for Lori Drew that he was not inclined to allow the government to introduce evidence concerning Megan Meier’s suicide at trial.  As reported by the AP, Judge Wu’s statement at the beginning of the week was:

“I don’t necessarily think the suicide is relevant to the crime charged,” Wu said, adding he thought details of Meier’s death would unfairly prejudice the jury. He said he planned to announce his final decision Friday.

That was Monday.  This was Friday.

Evidence from the suicide of a Missouri girl can be used by prosecutors against a woman charged with helping to create a false Internet identity that was used to harass the teenager, a federal judge ruled Friday.

It’s not so much that Judge Wu’s ruling is shocking in itself, as most people would have anticipated that this evidence, as irrelevant and prejudicial as it is under the government’s mangled theory of prosecution, would come in for no better reason then the fact that federal judges are not inclined to let law or reason hamper a prosecution.  It’s the shock of the turnaround.  What happened between Monday and Friday that caused Judge Wu to do an about-face?

Wu said he was now convinced that many prospective jurors would be aware of the suicide from reading news reports or seeing a recent episode of the TV show “Law and Order” that involved a similar scenario.

To the extent that this is really the Judge’s reasoning, it’s just horrible.  First, to let the media drive the admissibility of evidence at trial is utterly inexcusable.  Even if we assume that some jurors have heard something about the suicide, it has zero bearing on its relevance.  There is no “Law and Order” exception to relevance.  There cannot be.  Well, obviously there can be, as demonstrated here.

And what of the prejudice?

[Judge Wu] said he would instruct jurors, possibly at the outset of the trial, that the case was not about the suicide and that Drew is not charged with causing the suicide.

Falling back on the tried and true legal fiction that by instructing the jury, it changes something, is one of those dirty little secrets of the criminal justice system.  By pretending that the jury can somehow not allow the death of a teenager at the hands of an adult on trial affect their judgment, their emotions, their sensibilities, is a patently ridiculous notion.  It is flagrantly, undeniably, irreparably prejudicial, and this is clear and obvious to all comers.  Only someone in a black robe can pretend otherwise.

According to the St. Louis Dispatch, the government argued that the suicide evidence was necessary to make the story “logical”:

In court filings, federal prosecutors said that Megan’s death was essential to be able to tell a logical story to jurors and to allow witnesses to testify about what Drew allegedly did and said after Megan’s death.

It also demonstrates that Drew’s plot to “humiliate (Megan) and cause a troubled, depressed young girl emotional distress” succeeded, they say.

There’s a surface appeal to arguments like this, which is why they are used with such frequency when a prosecutor seeks to introduce inflammatory evidence that has no bearing on the crime for which the defendant is being tried.  Different words are used, “background”, “complete the narrative,” “tell a logical story,” but these are nothing more than code for getting wholly prejudicial evidence before the jury because without it, they jury won’t know how evil the defendant is. 

The purpose is to prejudice the jury.  The mechanism is the swinging back door.  Benign phraseology masks the insidious nature of the evidence, and trivializes that fact that there is no rational legal basis for subverting the rules of evidence.  There is no such thing as “background”, though it has now been approved many times without any decision providing any actual legal basis for its creation or rationale for why it trumps relevance, hearsay, or any of the million other rules that are applied rigidly against the defense.

When Judge Wu announced that he was not inclined to allow evidence of the suicide at trial, it was a powerful statement in support of the rule of law, even in the face of horrendous facts.  This is the sort of judicial strength that one prays for, the will to ignore the villagers with torches and pitchforks outside the courthouse doors.

This change of heart, or perhaps some other part of the anatomy, strikes a terrible blow to both reason and stability.  To Dean Steward, who is being pushed to trial while Judge Wu sits on motions to dismiss, this ruling changes his entire approach.  Preparing for trial requires some small degree of stability as to the evidence to be confronted.

But to the rest of us, this makes the legal system appear to be totally arbitrary.  How can a judge spin in circles like this?  When Judge Wu stated on Monday his intention to preclude suicide evidence, was he talking out of his hat?  Did he think about it at all, or was this just some off the cup remark on an issue of monumental importance? 

If he had given this thought, and it was more than some wild, thoughtless remark, how then can he spin on his heels and come out the exact opposite way by the week’s end?  Lawyers spend a great deal of their time trying to understand the law and how judges will apply it in a sane, rational, reasoned way.  Then something like this happens to make the system seem like a joke, where night becomes day and the sun rises in the west.  Try explaining to a layman how everything can change so drastically for no particular reason, and then ask him what he thinks of the law.

I’m told that Judge Wu is considered a smart, thoughtful judge.  Who am I to doubt this?  If I was a cynical person, I would supposed that this is just a typical example of a federal judge finding a way to rationalize screwing the defense and enabling the government.  After 25 years in the trenches, it’s what I expect.  For the sake of society, I had hoped this case would be different, and for a few glorious days, it seemed as if this case would be elevated above the basic “find a way to screw the defendant” approach.  I’m no longer so hopeful.

And some day, years from now, when you wonder how bad law happens, remember this reversal of fortune.