The majority decision in Richards v. Florida would have passed unnoticed, despite its being a flagrant example of an outcome-oriented ruling that flies in the face of reason, standard practice and that annoying detail of evidentiary gatekeeping. So what? It’s not like it doesn’t happen all the time, right?
The facts are simple. Richards was caught with a change purse containing 7 packages. One package was tested and found to contain 3 grams of coke. The other six packages, which look like the first, weren’t tested. Richards was convicted of possession with intent to sell because only dealers have seven packages of cocaine. After the guilty verdict, Richards moved for acquittal arguing that it was legally insufficient to assume that the contents of the other six packages were coke.
The majority gave Richards a new title: Loser. It was close enough, they said, that a “seasoned” copper said they looked the same, and that’s how dealers hold their coke, in change purses. Why they didn’t just reverse and remand, with an aside that the chemist merely test the other six bags, is beyond me. Easy enough to do. What should have been done in the first place. No brainer.
Nope. Horseshoes played out in court. Close enough for the win.
But dissenting Judge Farmer obviously studied logic, and wasn’t having any of it.
The State’s “expert opinion” may seem enticing to those energized by the ethos, empathies and emanations of the War on Drugs. But even based on long experience in arresting drug offenders, it is really a superficial ipse dixit glibly but speciously offered as a mythical expertise in distinguishing the interior chemistry of one powdery substance from another by plain surface sight.
No conceivable police experience supports an ability to infer that, because one container looks like another, the substance within each must be the same identical chemical compound. This fancied skill is really a universally recognized logical fallacy all dressed up for trial in a charade of specialized knowledge.[6] As opinion testimony, it is a conjured science straining to salvage a failed logic.
[6] Calling it “junk science” seriously debases the value of good junk.
Logical. Funny. Dare I assume also good looking? Definitely in my eyes.
Judge Farmer goes on to present the equation:
Universally accepted principles of standard Logic hold it possible to validly infer that an attribute of a collective will be found within one of its particulars; thus:
All S is C.
X is S.
Therefore X is C.But one cannot validly infer that — as the State would have us do here — because an attribute is found in a particular it is necessarily also contained within a collective; thus:
Some S is C.
X is S.
Therefore X is C.The evidence of sale is 7 different, separately packaged, collectives — not one. The State’s attempt to extrapolate the test result for a single bag to all bags falls apart because it is rooted in this long accepted fallacy of composition symbolically illustrated above. See, e.g., Irving M. Copi, INTRODUCTION TO LOGIC (3rd ed.) 80-83 (1968). The inference is not rationally possible.
Don’t you just love it when logic is applied to law? And isn’t it a shame that all judges aren’t required to take logic before taking the bench? Just imagine the gymnastics judges would have to go through to affirm convictions if they were constrained to render decisions that were consistent with logic?
H/T Tannebaum
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They didn’t even need to run any more tests to do all 7 packages, at least from a science geek point of view. In a sane world, the amount of cocaine does not include adulterants. E.g. 100 grams of powder at 7% concentration equals possession of 7 grams of cocaine. I don’t know if New York drug laws are sane, but let’s pretend. So all they had to do the first time was take equal size samples from all seven packages, mix thoroughly, determine the concentration of the sample, and then multiply by the weight of all seven packages. Not sure if that fits the rules of evidence, but it’s valid science.
No, no, no. That wouldn’t do at all. First, the decision isn’t from New York, but Florida. That aside, by comingling the sample from each bag and testing as a single batch, it would wholly inadmissible. Each bag has to individually be tested, or one bag of real coke and six bags of cut would appear as 7 bags of real coke. Drugs are tested as the aggregate of each individual container, as they are routinely mixed with adulterants, and the adulterants are included in the weight. But each aggregate bag would still have to be individually tested, by sample, to show that each particular bag contains drugs.
You may not be aware of this, but it’s a law blog. As such, I try to keep evidentiary discussions reasonably relevant to law.
Duh. Florida. Anyway, the real problem with my scenario is that the adulterants are included in the weight.
Just to clarify, if the defendant had a 1-gram baggie of cocaine and six 1-gram baggies of baking soda, then she would legally be in possession of 1 gram of cocaine. But if she poured all seven bags into one larger baggie, she would now be legally in possession of 7 grams of cocaine. On the other hand, if it was a lab technician or cop that poured the bags together, that would violate the rules of evidence and none of it would be admissible. And in any case, the not-cocaine that’s next to the cocaine counts as cocaine if it’s a powder, but the not-cocaine that’s next to the cocaine does not count as cocaine if it’s a plastic bag or a change purse. Have I got all that right?
The relevance to law is that the law doesn’t make much scientific sense because it’s disconnected from reality. I realize that you have to deal with the law as it is, but I still reserve the right to complain about it.
If we’re going to sentence people for possession of cocaine that isn’t actually cocaine, then of course we’re going to get all sorts of other foolishness as well. Why not just throw suspected cocaine users in the river and see if they float? It would be easier and just barely less accurate.
Yup; it’s stupid. As I understand it, you’d best not let a hundred-dollar bill drop into your full bathtub, as many of them do have some cocaine residue (I’m told), and you’d be in possession of a bathtub full of liquid cocaine.
Homeopathy: it’s the law.
The shift from pure to aggregate weight was a problem because they weren’t able to throw defendants deep enough in the river. The argument went that drugs were sold as aggregates, heroin or coke plus cut. If they sold an ounce of coke, they should be charged with an ounce of coke. Ironically, this change burned the street dealers more than the major dealers, the former selling drugs that had been stepped on numerous times, while the latter would have near pure stuff. But it did result in higher charges and more little shnooks in prison, and that’s really what it’s all about.
So yes, they are sentencing people for cocaine that isn’t really cocaine. And they were sentencing them 100 times longer for cocaine that was cooked down to small rocks. And don’t even get me started on the mature stalks of marijuana plants, should a single leaf or bud remain attached.
And that’s how we stop drug-crazed criminals from raping our daughters, dagnabit.
And you can bet they would voucher that vicious liquid cocaine too. It might be interesting when they bring it into the courtroom for trial, to toss in a few gold fish when no one’s looking and see if they rape the daughters of the other gold fish.