It was a suppression hearing before the late EDNY Judge Gene Nickerson, with co-counsel Lynne Stewart.  I have no recollection of who the assistant was.  The nurse practitioner from the emergency room was on the stand.  Judge Nickerson had a disconcerting habit of spinning his chair so the back was facing the courtroom. Every once in a while, someone would say “Judge?”, and he would answer, “I’m listening.” It pays to be sure.

As the nurse practitioner began to explain, to a reasonable degree of medical certainty of course, that the broken bones in the defendant’s face could be explained by the bruise on his skin in the precise shape of a Glock, Judge Nickerson spun around in his high-backed chair and showed keen interest.

He then seized the questioning, to show that sometimes a fellow can fall of his own accord, strike the pavement that was sadly beneath him, and get a bruise in the oddest of shapes.  The judge explained that he knew all about this. He knew science, and no nurse practitioner was going to convince him otherwise. Motion denied.

The New York Law Journal has a story of judges who are taking a “crash course” in science.

In the modern courtroom, a judge is as likely to encounter Watson and Crick as Brandeis and Cardozo, despite the fact that the jurist’s formal education in science may have ended with high school chemistry.

But in an era when science is bombarding civil and criminal courts and judges are frequently asked to ponder theories posited by expert witnesses, more jurists are going back to school for crash courses in genetics and other sciences.

That era, of course, started about three generations ago, but as the old saying goes, better late than never.  They even posed for a photo op to demonstrate their dedication to being gate-keepy.

But there’s another old saying that bears remembering: a little knowledge is dangerous.

“We are not scientists and we will never be scientists, but as ‘gatekeepers’ we have an obligation to at the very least understand the science that is being proffered to the extent that we can ask questions of the attorneys, something as fundamental as: ‘What does it all mean? What does the process mean? And what do we hope to gain from this scientific information?” said Acting Supreme Court Justice Juanita Bing Newton, dean of the New York State Judicial Institute at Pace University in White Plains.

With all due deference to Judge Bing Newton’s good intentions, those really aren’t the right questions. In fact, those are some very dangerously wrong questions, as anyone who has had the pleasure of attempting to bring science into the courtroom knows.

Science isn’t something to be qualified by the rhetoric of lawyers, arguing its value and efficacy to a judge who may want nothing more than to fulfill the role of gatekeeper admirably, but whose knowledge of the underlying substantive science is inadequate to distinguish between truth and truthiness.

The frustration of trying to explain why popular conceptions of scientific fact are not scientific fact can be overwhelming. But it makes so much sense to the judge, the argument just confirms that the earth is flat, that no empirical proof matters.  And as the foundation of law provides, and Appellate Squawk admirably explains, fact is whatever the judge says it is.

Scene: The Judge Cafeteria in the Brooklyn courthouse.  Judge Bludgeon plops his tray down next to Judge Tenafly and Judge Gravesend eating jell-o salads.

Tenafly:  . . . and of course I found it reliable because it was a dying declaration.  Plus he swore on the Bible.  Hiya, Bludge, where’ve you been all week?

Bludgeon:  Just got back from rigorous scientific boot camp in Cancun.

Gravesend: Science, bah, humbug! Undermines our authority.  There’s only one expert in my courtroom, and that’s me.

Bludgeon: You guys better get with the program and learn to talk science or jurors will be snickering at you before you can say “falsifiability.” After all, we’re the gatekeepers.

Talking science is not science.  Adopting the jargon of common courtroom forensics isn’t the same as recognizing that junk science, phony experts, suspect evidence has been flowing through the well of courtrooms for generations, now being so deeply embedded in our jurisprudence as to immutable fact.  Despite it not being scientific fact at all.

How do I know this?

Dog sniffs suffice to establish probable cause.

Police officers are admitted as experts for whatever subject the prosecution needs an expert on.

Eyewitness identification is allowed, but expert testimony as to its unreliability is not.

False confession experts for the defense are prohibited.

The Intoxilyzer 5000 isn’t the subject of universal ridicule.

And a bruise on a defendant’s face in the exact shape of a Glock isn’t caused by an unfortunate accidental fall to the pavement, any more than space aliens.

Certainly, judges should know and appreciate scientific method.  Clearly, judges should understand that the repetition of scientific nonsense by generations of prosecution “experts” doesn’t make their testimony scientific, just repetitive.  And yet, New York remains a Frye state, because Daubert is too much work to get right.

That judges have chosen, after how many thousands of rulings, to learn about science is certainly a better thing than awaiting their farewell dinner to think about how to fulfill their gatekeeper function adequately, but the law is replete with scientific nonsense which has served the goal of convicting defendants so well for so long that it’s almost inconceivable that anything will change.

After all, when the science gets hard and confusing, when the science conflicts with rulings that have been handed down forever because we have constructed walls of law around remarkably unscientific notions — like “dog hits” for instance — then there may be hope that it’s not merely a rhetorical game played in the name of science, but no more scienc-y than courts have ever been.

It would be great to have real science replace the façade that comes from the witness stand.  When the first judge tosses a prosecution’s junk science sacred cow, I will be the first to heap praise upon the thoughtfulness manifested by the ruling.  Until then, I plan to spin my chair around and take a nap.