Teaching criminal law at Fordham Law School, John Pfaff posts at  PrawfsBlawg about the Supreme Court’s recent decision in Cavazos v. Shirley Ree Smith, dealing with two critical and troubling issues arising from the case.

The question at the heart of Cavazos is whether a 7-week old boy, Etzel Glass, died one night from SIDS or due to shaken baby syndrome (SBS) at the hands of his grandmother, Shirley Smith. At trial, the jurors heard from dueling pathologists about the likely cause of death, and they ultimately accepted the story of the prosecution’s doctors and convicted Smith.

The evidence in the case was ambiguous. Many (though not all) of the “tell-tale” signs of SBS were missing, and the state’s experts concluded that death resulted from an undetected—and perhaps undetectable—shearing of the brainstem. Smith’s pathologists noted that Etzel was a low birth-weight child born with jaundice and a heart murmur, all of which are risk factors for SIDS. A classic dueling-experts situation.

The forensic diagnosis of Shaken Baby Syndrome, a diagnosis that exists only for the purpose of prosecution and to give an ugly, criminal name to what was previously an otherwise inexplicable cause of death, has come under increasing attack.  At its creation, courts took for granted that such a thing was real and had a basis in medical science. 

As is too frequently the case, its existence failed to bear up to scrutiny, and medicine is coming around to acknowledge that it’s a purely manufactured creature, used to give the impression of proof of a crime for deaths that can’t be otherwise explained or which weren’t the result of any crime or violence. But when a baby dies, someone has to be blamed, and so a crime was created.

Pfaff confronts the problem of fighting the “dueling experts” dilemma:

The [9th] CCA adopts the conventional view on jury fact-finding in complex scientific cases: “The expert opinion evidence … was conflicting. It was for the jury to resolve the conflicts. The evidence was substantial and sufficient to support the jury’s conclusions….” The Ninth Circuit, on the other hand, argues that the scientific uncertainty here bars a beyond-a-reasonable-doubt conclusion about guilt as a matter of law.

This is fascinating stuff, where two witnesses, both accepted as experts and qualified to render opinions, clash, the 9th Circuit held that the prosecution’s expert, as a matter of law, cannot meet the threshold for conviction. Pfaff questions whether this is an example of the 9th Circuit’s “judicial activism,” or conceptual logic in the face of precedent.

But there is a different, broader way to read the Circuit court opinion that in some ways avoids the AEDPA problem (but introduces a host of other problems): what if we have a blanket rule that when both the state and the defense introduce plausible, reliable and contradictory scientific evidence  about an essential element of a crime, the state automatically loses?

Think of it this way: when both sides introduce credible expert testimony on an element of a crime, perhaps there is no uncertain fact for a jury to “find.” What we have is a “known unknown”: we know that we do not know the answer.† And not knowing seems to be reasonable doubt; or, phrased more carefully, in the presence of a “known unknown” it is unreasonable to say that you know one way or the other. And at least in criminal cases, that should tip the balance automatically in favor of the defense.

† It is unfortunate that Donald Rumsfeld has been mocked for using this term, and it is unfortunate that the term now often elicits a snide laugh because of its association with Rumsfeld. The concept is a profoundly important one, and whatever your impression of Rumsfeld he used it completely correctly in his speech.

What comes off as rather obvious given Pfaff”s explanation is, indeed, a profound notion. When experts, by definition acknowledged as they’ve been allowed to offer scientific evidence and opinion, conflict, is there any rational basis for an ultimate determination that one wins and the other loses beyond a reasonable doubt? We can accept that there’s a real question, but that doesn’t mean a real answer follows.

And yet, the analysis doesn’t stop, but goes to the next level, where real world decisions are made.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Think about it (and think hard, now that the question is staring you in the face), the practical absurdity of asking a jury, a bunch of nice folks with utterly no qualification to determine which of dueling experts is conceivably better, no less correct to the exclusion of the other, reaching a verdict.  There is no rational basis for them to do so; whether they have some magical quality that permits them to decide truth from lies is one thing, but to decide scientific merit when they may not be able to spell “scientific”?  It’s nuts.

Pfaff goes on to proffer a “radical” theory, that given the absence of a rational basis upon which a jury could reach a verdict, the statute could be changed to reduce the prosecution’s burden from proving commission to showing that commission was “plausible.”

Forcing us to rewrite statutes along these lines lays bare the implications of the legal fiction of “jury factfinding” in situations of scientific complexity and “known unknowns.” They are not finding that x caused y; at best they are finding that x perhaps caused y, or that it is not completely impossible that x caused y, or something along those lines. The revised statute may be unpopular—how can we convict someone for possibly causing a death?—but again, stripping away the legal fiction of “jury factfinding” here, that is what we are doing.

While this would be extremely unpopular, essentially eviscerating the standard of proof via the backdoor in criminal convictions, Pfaff’s point is that it would at least be honest, ridding us of the legal fiction that juries find facts rather than reach verdicts.

Whether you agree with Pfaff’s ideas, he’s managed to mix in doctrine and theory with some extremely controversial, and very real-world, issues that we confront regularly in the trenches, providing quite a bit to think about and, more importantly, so great points around which argument can be crafted in the trenches that will inure to the benefit of real people and real cases.  An exceptional post that proves scholarship can, and is, useful to the legal profession, and clarifies and advances thought and argument in the trenches, where real people dwell.

Chances are that more experienced lawprofs would cringe reading the comments to Marc DiGirolami’s post at PrawfsBlawg.  They would never admit it publicly, as no one circles the wagons faster than scholars, who hate the barbarians questioning their utility, but most are pretty smart guys who get it.  Some, sadly, aren’t quite as smart. And some are thick as a brick. 

Meet Marc DiGirolami, a law professor at St. John’s Law School.  After reading a relatively benign post directed toward nipping at the edges of David Segal’s  New York Times article castigating law schools for their failure to do everything from teach students to be lawyers to make a decent cup of joe, it struck me that DiGirolami’s post served to inadvertently bolster one of Segal’s more potent criticisms, that legal scholarship was useless and irrelevant. 

Others in the Academy continue to dispute this allegation.  Duke Law Dean David Levi tried to salvage the sullied reputation by offering a letter to the Times, which it ignored.  Instead, it’s posted at Balkanization.

Just as law practice has changed, so have the law schools. The law school of today is not the law school of The Paper Chase or of Christopher Langdell. But some things have not changed, and we should be glad of it. The faculties of the top schools include leading scholars whose work engages with some of the most important legal problems facing the country and the world, from human rights to regulation of the financial markets, from constitutional interpretation to corporate criminal liability.

I don’t see what’s the big deal with Heidegen. The Appeals Court found that the jury could reasonably have concluded that the defendant knew he was driving the wrong way. If so, it matches perfectly with the classic DIRM situation of riding a horse into a crowd. Even if you think the jury, the trial court and the appeals court all got that issue wrong, it is a highly fact specific question and thus not terribly interesting to the development of the law.

Furthermore, it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail. First do no harm and all that.

Aside from the complete misapprehension about the Hedegen decision, and fundamental ignorance about the depraved indifference standard, enough so that it would make most law students shake their head in disgust, this comment brought a new, and certainly more challenging issue into the mix.  While Brad didn’t see fit to leave a surname or link, it may well be that he’s a lawprof somewhere.  I certainly hope so, as any practicing lawyer who would leave such a comment should be shot.

But the second paragraph of the comment may be worthy of a place of honor on the all-time most outrageously offensive, mind-boggingly stupid things ever said on a law blog.  I did a double take.  Was it possible, at all possible, that someone is so fundamentally ignorant as to say such a thing?  Well, clearly so.

Now it seems pretty obvious that Marc was busy writing his final attempt to salvage his tattered dignity when Brad’s comment posted, so I assume that he didn’t know of it at the time he slammed the comments shut.  While Marc’s practice experience is a bit thin, he did serve as an assistant prosecutor for two whole years, one of which was as a “special prosecutor.”  I’m sure he was quite special.  It was in Massachusetts, so he may not have had much reason to concern himself with New York’s depraved indifference law.

Still, as a prosecutor and a scholar, he should have had some basic familiarity with criminal law that would have compelled him to address the notion that “it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail.”

Not a word. Not an utterance. The comments were closed and they would stay that way. 

While my attempt to help Marc DiGirolami understand the difference between using scholarship for something useful fell on deaf, and overwhelmingly defensive, ears, it came as no surprise given how academics have such a hard time admitting fault.  But that he ignored this flagrantly idiotic and outrageous statement cannot be so easily excused.

Marc DiGirolami teaches criminal law to students at St. John’s Law School.  If he lacks either the brains or balls to challenge the stupidity in Brad’s comment, he has no business teaching anything to anyone.  Our next generation of criminal lawyers, whether prosecution or defense, deserve better.

There has long been a tension among white powder criminal defense lawyers from Miami and New York about getting and keeping good clients.  As far as business goes, there’s none better.  They have the wherewithal to retain counsel, and the right attitude about it. Lawyers are a cost of doing business.

But times change, and this once burgeoning practice niche has changed with it.  The business-like approach gave way to kids who saw Tony Montana as a role model, who lived fast and furious, so that they were often broke by the time they were arrested despite the significant sums they earned in their short careers.  Sorry, but not interested in taking that 20 pound diamond encrusted gold necklace as a fee, no matter how much you paid for it.

When the real deal comes along, the drug defendant who has both money to pay lawyers and the business approach to business, lawyers want to score the case and, once retained, keep the client. Especially from other lawyers poaching, and there was never a shortage of lawyers hanging around the lawyers visiting rooms of MCC, always available for a chat.  Prisoners will chat with pretty much anybody in a suit and tie.

The word out of Miami’s Federal Detention Center is that lawyers are now expected to bring some entertainment with them during “counsel” visits.  From the Miami New Times :

Stripteases, sexual favors, booze, porn mags, and fat stacks of cash would be run-of-the-mill in many Miami strip clubs. But at downtown’s maximum security Federal Detention Center?

Multiple attorneys interviewed by Riptide say the FDC visitor rooms have been taken over by South American pole dancers posing as paralegals for wealthy drug lords inside. Lawyers hired by the accused narco dons allegedly list the scantily clad women as “legal assistants,” and the FDC lets them in. Meanwhile, attorneys who refuse to go along risk losing their clients to lawyers with busty beauties on staff.

“They take off their tops and let the guys touch them,” veteran defense attorney Hugo Rodriguez says. “The majority of these young, very attractive women are noncitizens brought in exclusively for the purposes of visiting the FDC. Any lawyer can sign a form and designate a legal assistant. There is no way of verifying it. The process is being abused.”

When I first  posed the question of how one defines “cyberbullying,” I received no good answers. That’s because there are none, the proponents of laws against bullying preferring to ignore problems like definitions in favor of outcomes, like any conduct that makes someone feel badly.  This, of course, fails any test of providing notice of prohibited conduct, and empowers teacups everywhere to lash out at their nemeses.

Of course, when anything can fall within a definition, it’s easy to make claims that the problem is pervasive, and hence demanding of extreme and immediate action.  Proponents of anti-bullying laws have bootstrapped a handful of high profile instances into the suggestion that this is a “pandemic.”  Hans Bader at the Examiner isn’t buying.

The Rule of Lenity is that statutory ambiguities are to be resolves in favor of the criminal defendant.  It’s a rule honored primarily in the breach, forcing judges to perform amazing gymnastics to avoid the appearance of ambiguity despite having to leap statutory holes in the process.  For those disinclined toward judicial law-making, it compels judges to create law rather than cut the defendant a break.

But the Rule of Lenity strikes at the heart of criminal law. In the absence of a law satisfying all the requisites to create a crime and impose punishment, there is no crime.  Many may argue there should be, and perhaps there should, but it’s the job of legislators to get it straight, not the rabble and not the judges.

The Supreme Court granted cert in Fuller v. United States, a gap case out of the 6th Circuit addressing the poor schnooks caught in the hole Congress left when partially normalizing the ratio of crack to cocaine by reducing the 100 to 1 ratio to 18 to 1, the factual creation of a camel when a racehorse was needed.  The  New York Times explains:

Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.

But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?

For such defendants, Judge Terence T. Evans wrote in one of the pair of cases the Supreme Court agreed to hear, the law “might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive.”

…had “lost on a temporal roll of the cosmic dice” and was “sentenced under a structure which has now been recognized as unfair.” But Judge Evans added that the courts were powerless to change things. A solution, he said, was up to Congress.

Judge Richard A. Posner, said that requiring sentencing under the old law after the new one came into force was “perverse” and “gratuitously silly.”

“Thoughtful people might wonder what sense it makes for Congress, having decided that a 100-to-1 ratio is excessive, to leave the minimum and maximum sentences alone for persons whose crimes predate Aug. 3, 2010,” Chief Judge Frank H. Easterbrook wrote in explaining why the full court declined to rehear four appeals presenting the issue. “It is a good question, to which there is no satisfactory answer other than the observation that legislation is an exercise in compromise.”

Guess what?  Yeah, some people are deaf.  And yet, they’re still people, not some weird subhuman species to be ignored because they just don’t get it when you talk at them.  One of the most intractable problems with police is dealing with people who have a disability, and with shocking regularity, bad things happen. 

For somewhat obvious reasons, being deaf seems to bring out the worst, and stupidest, in law enforcement.  What happened to Timothy Siaki is a good example.  From  MSNBC by way of Turley :

Siaki does not speak, read, write or read lips and he and Moore communicate by American Sign Language, the suit states.

The couple were at a local motel on May 14, 2010, when they started to “verbalize sounds which … may sound like the deaf person is speaking loudly or abruptly,” the suit said.

Those sounds led to someone calling police about a disturbance. Two deputies dispatched to the scene broke down the motel room door and arrested Siaki.

And he sat in jail for the next 25 days because Adams County, Colorado, Sheriff Doug Darr didn’t bother to find an American Sign Language interpreter.  Siaki had no idea why he was sitting in jail, or what was happening to him.  No doubt someone told him.  If things went the usual course, they likely told him over and over, each time raising their voice a bit more, until they were screaming at him.  After all, if you scream at a deaf person, should they hear?

Disabilities make the job really difficult for cops.  Deaf, blind, developmentally disabled. Where does it stop? What are they supposed to do when they give a perfectly reasonable command to jump and a guy doesn’t do it?  Isn’t that what weapons are for?

Of course, it’s easy to say they could have done more afterward, but they make split second decisions, even if they take 25 days to make them. 

And hidden just below the surface of this crack police work is the question of why they arrested Siaki at all.  For making weird “deaf guy noises?”   There’s no fault for responding to a call of a disturbance. There isn’t even a problem with breaking down the door of the hotel room, likely after no one responded to their knocks or screams, “police, open up or we’ll kill you, you lousy commies.”  All completely understandable.

But once inside, did they observe anything to suggest a crime?  No one hurt. No blood. Not even a boo boo.  Where’s the offense?  While the article fails to speak to this aspect of the debacle, I’ll engage in some rank speculation.  Siaki was arrested for lack of obedience.  He assaulted the police with his deafness.  They demanded answers and action, and he didn’t comply. Deaf people can be so contemptuous.

How they explained this to the judge who had Siaki held is another curiosity, but why would a judge demonstrate any degree of recognition of a problem with a deaf man who fails to argue his cause or clearly explain his predicament.  It’s not like the judge is sufficiently educated to recognize and appreciate the situation. Plus, the judge was probably busy and preoccupied with more important matters, like lunch or golf or re-election.

In an excess of caution, it’s worth noting that deaf people don’t always make things easier for themselves.  There’s a militant wing among the hearing impaired that argues deafness is not a disability, but an alternate culture.  They refuse to acknowledge that they suffer from any impairment, and contend instead that they simply speak a different language and enjoy a world that the hearing can neither understand nor appreciate. These are the people who refuse to allow their children to get cochlear implants, as if it’s converting to radical Islam. 

Because they suffer no disability, there’s no issue to be resolved, no problem to be fixed.  Until they find themselves staring down the end of a cop’s barrel, and can’t manage to make their philosophical point quickly enough to beat the rush of the bullet.  At that particular moment, it likely seems that they would have done better to embrace teaching hearing people ASL rather than disdain their interest because the hearing are unworthy of participating in the joys of deaf culture.

So Siaki is suing under the Americans with Disabilities Act for compensation for the 25 days spent sitting in a cell waiting for somebody to explain to him in ASL why he’s there. This suit would be novel, except for the fact that it’s anything but.  In Jefferson County, Colorado, the same thing happened, where Anna Orozco was twice arrested, but they had no one capable of communicating with her in ASL. 

One might suspect that the various sheriffs in Colorado would have gotten the message that they are required to provide a means of communicating with the folks they toss in the slammer, and they would have details like this all wrapped up ahead of time.  Maybe Sheriff Darr didn’t hear.

Since this isn’t supposed to happen under our system, the best ever devised, nobody ever thought it was necessary to come up with a simple way to fix it. From the Washington Post :

They believed that their son was innocent but were afraid that Virginia’s penal system would grab hold of him and never let go.

So Cherri Dulaney and Edgar Coker Sr. told 15-year-old Edgar Jr. to plead guilty to raping a 14-year-old friend. Their court-appointed attorney told them that was better than risking adult charges and a lengthy prison term.

Two months after their decision, in November 2007, the girl admitted that she had lied.

To an outsider, it all seems simple enough.  The “legal system,” which is personified in the minds of most non-lawyers, should give Edgar, Jr., a call, apologize for the inconvenience while duly shuffling its feet, and wipe the slate clean.   Maybe even give him a special wall plaque proclaiming he’s no sex offender.  Can anyone doubt that it’s the only right thing to do?

The Cokers have been fighting ever since to rescue their son from the consequences. He served 17 months in a juvenile prison. He remains on the Virginia sex-offender registry, and the family moved to avoid harassment from neighbors.

Last month, Coker, now 20, was arrested during a Friday night football game at the Orange, Va., high school he graduated from after his release from juvenile prison. Unless they have permission from the school, convicted violent sex offenders are not permitted on school grounds. But Coker had received such permission, and he attended school there for more than a year before graduation.

Edgar, Jr., is young, so he’s got a long, long life ahead of him on the sex offender registry, not putting too much angst into the 17 months served in juvey, 15 of which came after everybody involved knew he was innocent.  Where are they hiding that magic button that cleans up this mess?  There must be a magic button around here somewhere.

The problem is that Edgar, Jr. pleaded guilty to raping a 14-year-old.  In retrospect, it doesn’t look like a really good idea, but staring at a trial, the view was very different.  His parents thought it was a good idea, certainly better than spending most of his life in adult prison, where the real meaning of rape is taught.  His lawyer thought it was a good idea too. 

What about this horrible lawyer who advised his 15 year old client to swear that he committed a crime that never happened?  He must incompetent. He’s a danger to society. He should have to live the life his monumentally awful, cowardly, despicable advice laid on an innocent 15-year-old. Right?  Right?

Because criminal defense lawyers, as opposed to all other flavors of the species, have the singular ability to see into the future.  We’re expected to know what the outcome will be.  Or to those who haven’t been paying close attention, the system is so well-tuned, so trustworthy, so sophisticated at distinguishing guilt from innocence, that no poor 15-year-old boy could ever be convicted of a crime he didn’t commit. A crime that never happened.



Look at his face.  He’s a good looking young man.  Picture him with a smile, and I bet he lights up a room.  Would you like to be the one who tells him that room is going to be a prison cell for the next 25 years?  Would you like to be the one who assures him that somehow the truth will set him free?

While we often analogize the system to a game, particularly one of chance where we roll the dice and learn later when it’s craps, it’s no game for the kid whose life is on the line.  Nor is it a game for his parents, who stand in the background as they likely always have, doing everything they can to guide him, comfort him, protect him from life’s vicissitudes.  Most parents would take a bullet for their child.  They look like they would too, but there was no bullet to take.

So his lawyer saw a terrible crime, the sort that raises emotions that strangle reason.  His lawyer knew what the evidence would be, a 14-year-old girl telling a jury of how she was raped.  And the best he could muster was his own client saying it never happened.  Who would the jury believe? 

Certainty is for the other players in the system.  The cops, prosecutors and judges can afford to be certain, and only a few care enough to lose any sleep at night wondering whether they got the wrong guy.  They can take comfort in doing their job and letting the system do its.  If something goes awry, it’s not their fault.  And if something goes awry, they still get to sleep in their own bed no matter what.

The jurors care deeply, but just like feigned claims of passion, deep caring isn’t a substitute for harsh reality.  Jurors make a decision with the sense of security in knowing they’ve done their best.  Then they too go home to sleep in their own bed.  They look in on their children and smile, knowing that theirs isn’t sleeping in a prison cell that night.  They’ve done their best to be fair, to be “just,” but they have no magic either.  If only there was a big red light over the witness stand that went off when someone was lying.  Then they might decide differently.  But there’s no light, so they do the best they can.

And if the lawyer for an innocent defendant puffs out his chest and proclaims, we will fight and we will win, does that make it any easier, night after night, for a young man whose world is reduced to an 8 by 10 cell?  When the judge, the prosecutor, and probably even the cops, learn that no crime occurred, they probably feel very badly.  But then, the defendant was represented by counsel, and he chose to plead guilty.  No one made him, they say to themselves. It’s not like we forced this kid to cop out. He could have rolled the dice.  He could have taken his chances and risked the rest of his life on the jury believing him rather than the 14-year-old rape victim.

After all, our system is the best mankind has ever invented.  What more can we do?  Since someone must be at fault, and the person responsible for making sure the entire system doesn’t fail, let’s blame the lawyer who failed to know the future. 

The system may not be perfect, but it’s the best there ever was.  Keep saying that to yourself.  Tell that to Edgar, Jr.  Tell that to your own children.