At Tempe Criminal Defense, Matt Brown writes of the conviction of Lawrence Owens for the murder of a kid on a bike carrying a bunch of baggies of crack.  Owens was ID’d, first by typical photo array and then by line-up, where Owens was the only person in both.  It was a typical small-town bench trial and conviction back in 1999, before people seriously questioned the validity of such identifications.  Why it was a bench trial is unknown.

At the end, the judge ruled:

I think all of the witnesses skirted the real issue. The issue to me was you have a seventeen year old youth on a bike who is a drug dealer, who Larry Owens knew he was a drug dealer. Larry Owens wanted to knock him off. I think the State’s evidence has proved that fact. Finding of guilty of murder.

Which would have been fine, but for the fact that there was no evidence whatsoever that Larry Owens knew the kid was a drug dealer, was himself involved in drugs or had any motivation to “knock him off” to get his drugs.

On direct appeal and habeas, the conviction was affirmed.  Even though it was acknowledged that the trial judge’s explanation for the finding upon which he based the conviction was nonsense, it was harmless because Owens was guilty.  Not until the case came before the 7th Circuit did Judge Posner write the obvious:

That was all the judge said in explanation of his verdict, and it was nonsense. No evidence had been presented that Owens knew that Nelson was a drug dealer or that he wanted to kill him (we assume that by “knock him off” the judge meant “kill him”), or even knew him—a kid on a bike.

Posner goes on to explain that while facts can be inferred from evidence, or established by other means under certain circumstances, there is one thing that cannot be done, yet was done there: “The judge made it up.”  And if the judge needed to base his conviction on it, then it mattered.

Nonetheless, to repeat, we can assume that if the evidence of Owens’ guilt had been overwhelming, the judge’s conjecture that Owens knew Nelson and knew him to be a drug dealer and that Owens was (as the judge’s comment implied) himself involved in the drug trade (why else would he want to kill Nelson?) could be disregarded as goofy but harmless. But evidence of Owens’ guilt was not overwhelming. Had it been, it is unlikely that the judge would have described Owens’ supposed (but by only the judge) knowledge of Nelson’s involvement in the drug business as “the real issue” in the case. What may have made it the “real issue” to the judge was the scantiness of the actual evidence of Owens’ guilt.

To the extent that the uninitiated think that beyond a reasonable doubt is a serious standard, compelling judge or jury to carefully parse the evidence to be certain that all elements of an offense are proven, this is a splash of very cold water. Somebody ID’d the defendant as the killer, and that’s close enough.

The trial judge’s mistake in this case, as Posner points out, is that he explained his verdict by relying on a “fact” for which no evidence existed.  Had he kept his yap shut, even Posner would have affirmed, the “scantiest of the actual evidence” notwithstanding. In real life, it doesn’t take much.

But what distinguishes this reversal, 14 years in the making, is that it eventually happened at all. You see, the trial judge “found a fact,” and even though there was no evidence whatsoever to prove that fact, the act of finding it is usually enough.  Once found, it is fact. It gets repeated in sanitized version by the courts that follow as if nobody could ever question it, it was so obvious, so true.  It is the fact.

No trial lawyer hasn’t enjoyed the experience of seeing allegations hotly disputed at trial, subject to fundamental attack, barely “proven” if proven at all, magically transformed into irrefutable reality by the appellate court.  It’s as if everyone stood at once and said, “why yes, judge. Of course that’s what happened. Who could possibly question such an obvious truth?”  Except that didn’t happen, and in its place were vicious arguments over whether any reasonable person could draw such absurd and baseless inferences from such tenuous and questionable statements to arrive at a conclusion so utterly baseless as to make one’s eyes bleed.

And there it is, on appeal, presented as undisputable truth.

What distinguishes this decision is that every reviewing judge recognized that the trial judge’s finding of fact was baseless nonsense; he just made it up.  And yet, that wasn’t enough of a problem to reverse the conviction until it reached the 7th Circuit on habeas review.  But that’s neither shocking nor incomprehensible, even though it should be.

You see, two witnesses identified Larry Owens as the killer.  From the prosecution’s perspective, that’s all they need to do.  They can’t look into Owens’ mind to find what he knew about the kid or how he came to know it. They can’t look into Owens’ mind to figure out his motive for doing so.  And motive isn’t an element of the offense, as the prosecution likes to point out.  If the witnesses say it was him, it was him. The rest is just the color commentary, of interest to the peanut gallery but not to them.

You have a murder. You have two guys who said a guy did the murder, but who are highly suspect and tell different stories. You have no other evidence. The judge heard the scant evidence and said, after no evidence being presented about the defendant whatsoever, that the defendant is a rat bastard piece of shit who knew the victim was a drug dealer and wanted him killed, so the asshole is clearly guilty.

And that, on appeal, is what constitutes sufficient proof beyond a reasonable doubt that a guy is a murderer.  Had Posner not refused to go along with the shrug, no one would have been the wiser.  But this is the outlier, because no matter how vehemently allegations are challenged at trial, they appear on appeal as if nobody could possibly question them. That’s how facts are found.