Truth Redux

I guess I’m incorrigible on this point.

There’s an old lawyer I know who tells a story of a personal injury case from many years ago, during that brief interlude when courts were inclined to entertain them and juries were inclined to reward them.

Yes, it was a very long time ago, and the interlude was so brief few remember it.  It probably coincided with three martini lunches, which have also vanished down history’s memory hole, resurfacing only in fictional contexts like television’s “Mad Men” series.

In any case, in this personal injury case there was a one car accident that left a man paralyzed.  A very young man, so this was very tragic.  Could a lawyer do something to deliver a pot of money when there’s a one car accident and thus probably no one to sue?

To make a long story short, the case was turned into a products liability case, though of course this was before we really called anything a “products liability” case.  Everything was just “negligence”.

The idea was to blame the car and sue the manufacturer, since no one else could be to blame except the driver and, you know, you can’t sue yourself.  Since it was a one car accident, you see.  And the manufacturer is conveniently a car company with lots of money and insurance, so in the end if you win the bill you send can be paid.*

The ‘theory of liability’ was that the car was negligently built or designed – that is, that it was ‘defective’ – and it all had something to do with the way the doors were designed.  Somehow, the manufacturer should have made them differently and if they had the young man would not have been catastrophically injured, as indeed he had been.

The case went on its merry way and sometime before or maybe it was during trial there was a substantial settlement in the young man’s favor.

But here’s the thing:  the old lawyer (who was then young, of course) was very pleased with himself and so were his partners and everyone else in the office, and one of the reasons was that, as they often told it, the whole defective door argument was just something invented out of whole cloth, made up, then justified and rationalized and advanced and pressed to a successful conclusion.

For my own part, I’m not entirely sure that’s true.  I’ve never looked into the whole case very deeply; I just listened to the stories with the mild amusement that was intended in the telling.  But that’s not the point.

The point is, it’s a very dangerous thing for anyone – and especially lawyers – to conclude that the reality underlying a case doesn’t really exist or doesn’t matter, that litigation is a contest where the two opposing sides advance self-serving arguments and that the ‘evidence’ produced by each side is limited by little more than whatever one’s own imagination and self-interested will can achieve.  As if winning or losing a case is only the result of cunning and the simple desire to win rather than accurately ascertaining the underlying reality, or at least one side more accurately ascertaining it than the other side.

One of the main reasons this mindset is so dangerous is what might be called the marginalization of honesty.  An honest lawyer will not make a fight unless he thinks the underlying reality supports the fight he is making.  That doesn’t make him necessarily right, of course.  He might be wrong about the underlying reality.  But it matters whether he is honestly mistaken or, say, just doesn’t give a shit whether he is mistaken.  Or at least it should matter, even though the practical result might be the same:  mistaken is as mistaken does.

But notice, if he’s not honestly mistaken but being, say, deliberately deceptive, it resembles a very similar phenomenon to Bill Black’s adage that dishonesty drives honesty out of the market:  the honest lawyer can’t compete with the dishonest one.  A lawyer who will make any argument regardless of honesty will have a lot more winning arguments than an honest opponent.**  The honest lawyer is constrained by the limits of reality and the dishonest lawyer is not.

Of course the system addresses this after a fashion:  honesty from lawyers – whatever side they are representing – is to be presumed.  Not conclusively, but close.  This is because their fundamental honesty is supposed to be sorted out when they are admitted to practice - there is a rigorous vetting process for “character and fitness”.  That is not a joke.

But it seems like a joke, to everyone reading this.  And sadly, to judges and lawyers themselves.

We just posted about a Brady violation, and we’ve been coming back over and over for the last few months to this distinction between the deliberate suppression of evidence and the inadvertent suppression of evidence by a prosecutor.  That is, the difference between an honest mistake and lying and cheating.  A distinction which, it seems, only we here at Lawyers on Strike seem to care about.  We have noted that the deliberate suppression of exculpatory evidence by a prosecutor always violates the defendant’s right to due process of law whereas its inadvertent suppression may, or may not. 

And so it becomes important in that context to determine whether a prosecutor’s conduct has been deliberate or not.  In other words, what was or is going on in the proecutor’s head?

Of course, suppression is as suppression does, whether it’s deliberate or inadvertent.  A criminal defendant who was convicted and sent to prison when evidence that might have made a difference was withheld doesn’t care whether the prosecutor meant to or not.  And explaining to him that he lost his post-conviction plea for release because although that evidence was wrongfully suppressed it wasn’t deliberately wrongfully suppressed will seem both arcane and ritualistic.

But lawyers – and especially judges – do have to look out for the system, too.  The system’s integrity, to be more specific. 

And here is an uncomfortable truth:  the system can have no integrity so long as its officials – and that includes all lawyers, and to be more specific again it includes criminal defense lawyers – subscribe to the opinion that there is no such thing as really true and really false, really guilty and really innocent, because if that’s true there’s no way to distinguish between honest and dishonest.  After all, an honest man is one who will not engage in willful falsehood, which becomes a meaningless definition if nothing is true and nothing is false.

Of course we live in an imperfect world.  And we are not a perfect profession.  So we add this caveat:  the system would be diminished and deeply flawed, but not necessarily entirely dysfunctional, if large numbers of criminal defense lawyers subscribed to that opinion. ***

But it would be entirely dysfunctional if a prosecutor did. 

And if the police subscribe to it?  We’ve had a commenter over here, Martin Preib (just follow the link and read through the comments), who for want of a better term (since this post is already too long) is a cop-apologist.  He represents the mindset of the majority of police.  And notice the perspective:  it’s not that he explicitly endorses the idea that the stronger will prevails regardless of underlying reality – that is, a sort of latter day Nietzsche point of view – it’s that he can’t tell the difference between a case where the underlying reality lines up with his opinion and a case where it doesn’t.  To him, the Anthony Porter ‘wrongful exoneration’ and the Central Park Five are the same thing:  their team versus our team.  Which side are you on?  It’s not so much that he denies the categories of truth or falsehood explicitly; he just unconsciously doesn’t use them because he is unaware of them.

So we ask ourselves whether this mindset has its origins not in the police departments themselves, but in the corruption of the legal profession that was already worrisome, albeit subtle and confined to less significant matters, all those many years ago, and which may have filtered down to the police in the years since. 

And we also ask if anything can really be done when things have deteriorated to the extent they have.

Ugh. 

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*  The reason you often see lawsuits where it seems like the Plaintiff has sued someone who doesn’t seem to have much fault is that many times the only person or entity that has enough money or insurance to cover a large bill is a person or entity that, well, doesn’t have much fault.  In many instances, a little fault is enough, due to a concept called “joint and several liability”, which we won’t discuss here because it’s too boring to write about, although it is far from boring when you have to decide who to sue and whether the monied person or entity you have your eye on has any genuine fault.  But never mind.

**Bill Black has also recently weighed in on legal profession corruption in a more specific context

***  To be fair, the criminal defense lawyer’s practice tends to lead him in that relativist direction because it is so much more nuanced and intellectually difficult than a prosecutor’s

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Case In Point, Brady Follies Edition (Updated)(x2)

A serious Brady violation comes to light and for once the judge reaches the right result.  That’s noteworthy enough by itself.

But what’s also noteworthy is Scott Greenfield’s post about it.

What you’ve got here is a prosecutor who may or may not have deliberately suppressed exculpatory evidence.  Under the Brady rule it doesn’t matter which, but for broader due process implications it matters a great deal, a very great deal.  We explained it this way in a post earlier this year:

In other words, the deliberate suppression of exculpatory evidence is always a violation of due process, not because of Brady but because of Mooney.  The inadvertent suppression of exculpatory evidence – what Brady was really addressing – is a violation of due process sometimes.  And sometimes it isn’t. (links to cases added to this quote for convenience, and if you’re interested in this issue you should really read those cases)

But what is also very intriguing about Greenfield’s post about the episode has to do with another quote from the same post:

So it becomes important, then, to differentiate between the inadvertent (Brady) and the deliberate (Mooney) suppression of exculpatory evidence by prosecutors.  Especially when you can actually prove the latter. 

Important or not, though, what you’re liable to run into is not just the reluctance and skepticism of prosecutors and judges (which you are expecting) but a reluctance on the part of defense lawyers as well, a reluctance to distinguish deliberate from inadvertent suppression, owing to an instinctive belief that this will wind up minimizing the seriousness of the inadvertent suppression.

And that belief is not without some merit.

Now, in this current case of Megan Teesdale, Greenfield argues that the prosecutor’s failure was deliberate:

You see, new prosecutors want desperately to win at trial, and pore over every detail, every word, in preparation. They want to make their bones. They want to show their fellow prosecutors that they have the right stuff.  They do not want to lose, and they don’t neglect to read the police reports. Every single one of them. I call bullshit.

I think he’s overstating his case.  First, prosecuting is not like defending at all.  Greenfield is more describing the defense lawyer’s approach than a prosecutor’s.  A prosecutor is never, for example, desperate.  He just expects to win.  A prosecutor is thus much more likely to be sloppy, to not read a police report (even in a case that’s going to trial) than a conscientious defense lawyer is.  In short, it’s more than theoretically possible that Teesdale’s failure was inadvertent and not deliberate.

Beyond Greenfield and me, the judge banished prosecutor Ms. Teesdale from his courtroom, refusing to believe her failure was deliberate, but noting that even if it wasn’t she was guilty of “gross negligence” and could not thereafter be believed.

I think that’s more accurate, but in any case, assuming it wasn’t deliberate, I don’t know that Teesdale should have her entire legal career ruined, as Greenfield suggests.  I think she should probably lose her job as a prosecutor, though.  Maybe a huge showing of contrition would change my mind.  Not that what I think matters, of course.

But the more important distinction here is this:  what if Greenfield conceded that the proof of the “deliberateness” of Teesdale’s failure just wasn’t there.  Would he think that made any difference?

I suspect the answer is no, and I’ll tell you why.  In practice it would hardly ever make any difference.  There are many, many more Brady violations than Mooney violations.  And what’s more, while both are normally difficult and often impossible to prove, even within that narrow range you’re much more likely to get proof of a Brady violation than a Mooney violation.  For lawyers, it’s about what you can prove.

Greenfield again:

But there is a lingering question.  Was Megan Teesdale an outlier, a rogue prosecutor who saw the words that would destroy her case and made the decision, on her own, to deny its existence?  Was she a flaming incompetent prosecutor, the only baby prosecutor not to read the police reports in preparation for trial?  Or is this a reflection of the culture that Marvin Schechter wrote about when the Brady War broke out in New York.

To me, of course, this is a false dichotomy, for reasons I gave earlier.  But my lingering question is whether Greenfield, and the “criminal defense bar” in general, thinks “flaming incompetent” v. “rogue” makes any difference.

Update:  Take a look at this comment from Grennfield’s post:

The prosecutor violated the defendant’s due process right to a fair trial by knowingly presenting false testimony. But the judge should not have dismissed the case.

The Supreme Court had made crystal clear that this type of constitutional violation is subect to Chapman harmless error analysis…Bottom line: The case should not have been dismissed without the consent of the DA.

The commenter appears to be a law student, or maybe a young lawyer.  And maybe a prosecutor type.  In any case, in a later comment, he says this:

Due Process violations by a prosecutor (whether they be of the Brady, Napue or Giglio type)

These comments illustrate the failure to distinguish between deliberate and inadvertent conduct.  The former is not subject to harmless error analysis; the latter is.  The “bottom line” really is this:  conflating Mooney, Pyle and Napue with Brady has the effect of making Brady a limitation on Mooney, as opposed to the extension of Mooney it was meant to be and explicitly declared itself to be.  It limits Mooney by attaching a “materiality” requirement, and opening the “harmless error” vortex door through which all defense arguments disappear into the void, as usual the government’s deliberate use of perjury can then pass. 

But that door was supposed to have been slammed shut permanently almost 80 years ago.  That’s what Mooney and its progeny did, or they no longer mean anything by themselves:  they have been absorbed into the Brady orbit, as if Brady overruled them rather than extending them.

Some court, somewhere, needs to clear this up before the whole system implodes in an orgy of incoherence.  Ugh.

Update 2:  Here’s one particular thing that makes me think the SJ commenter quoted above is a prosecutor type:

If this case had gone to the jury it is possible that the jury would have still convicted the defendant, notwithstanding the victim’s contradictory statements. The jury could have concluded that the victim’s testimony at trial under oath was true, and her unsworn, contradictory pre-trial statement was false. That is a very common phenomenon in domestic violence cases involving recanting victims, although in reverse. There may be many reasons why the victim told the cops the sex was consensual. One reason is because it, in fact, was. But there might be many other reasons why she made that pre-trial statement that have nothing to do with the truth of her trial testimony. That is why we have juries.

Of course, I have said many times that the reason we have juries is that you can’t trust judges to be fair.  But then I have never been a prosecutor.

Never mind.

What is unstated in that commenter’s line of thought, and indeed never seems to enter the prosecutor’s commenter’s mind, is the oft demonstrated reality that sure, the jury might believe this or that – and then turns out to have believed wrongly.  The prosecutor’s instinct is to be very comfortable with “credibility” determinations because overwhelmingly prosecutor’s witnesses are believed.  Defense lawyers, on the other hand, know that without corroborating proof of some kind the opposite is true for them; that is, their witnesses will not be believed.  It’s one of the things that makes the defense lawyer’s job infinitely harder.

Remember commenter GK?  I had written, in relation to the most important case discussed on this blog:

“Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job.”

To which GK replied:

Then Ashley Baker and Todd Gaddy should testify in the criminal trial where the jury can determine their credibility

Same thought process as the SJ commenter, and I’m pretty sure GK was/is a prosecutor.  In fact I’m pretty sure of more than that.

But the problem I’m toying with – well, one problem anyway –  is that law enforcement frame-up jobs will invariably be established through documentary proof.  Which isn’t subject to a “credibility” determination, by a jury or any other fact finder.  In other words, to prove a law enforcement frame-up job you’re going to have to show how they did it, and of course they’re not going to tell you.  You’ll have to have something, like the Ashley Baker statement, that shows it beyond question and unalterably.  Once that is done, there is no point in hearing further from witnesses that have already been shown to be liars, or at least unreliable.

It’s an interesting question:  when is witness testimony unproductive in the truth finding process?  Or even counter-productive?  We explored that question here.  And here.

But among lawyers, we might be all by ourselves in our take on it.  Including criminal defense lawyers, who you might think would be on our side.

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It’s Good To Have A Navy

Not sure how you can justify this, given the cost-benefit analysis, but then search and rescue often seems like a disproportionate expenditure of resources.  I’m sure by now you could build 10 Boeing 777′s for the cost of searching for MH370.

At least this time we save a baby.  Nice going.

It surprises me that the US Navy is still operating any Perry class frigates.  I was on the reserve crew of one of them, out of Philadelphia when I was in law school.  Engineering wise, they were like half a Spruance.  Much cheaper to operate, I suppose, so they were kept around a lot longer. 

The Spruances were all gone years ago.  Most sunk as targets.  Like this:

800px-thumbnail

That’s the Hayler, the last one built.  The only Spruance still afloat is the Paul F. Foster, which is used as some kind of unmanned, experimental robot ship.  They don’t keep me informed anymore, so I can’t be more specific.

If memory serves Spruances were about $400 million a copy, and that was in the 1970′s when most of them were built.  They seemed ridiculously expensive for destroyers, which were kind of regarded by high up Navy brass as throwaway ships, at least historically.  The expense was justified because they were “modular” in construction and could be easily upgraded with new weapons systems, sensors and whatnot, which would keep them relevant and in service well into the 21st century.

Most of them didn’t make it past 2003.

Even so, a lot of that went on throughout their service life.  Upgrading, I mean.  Seemed like we were getting new systems every time we pulled into port toward the latter part of my active service.

I think to a large extent they were the Navy’s computer revolution pioneer ships, and ultimately casualties of that same computer revolution.  What little facility I have with computers I owe to my time on a Spruance class destroyer.  But even I could see, even at the time, that the dozens of refrigerator-size cabinets full of digital processing hardware that were built in to the 1970′s design were hopelessly outmoded a few years later.  By the turn of the century a typical civilian desktop computer was probably more processor-capable.

Sometimes the whole project just seems a waste to me.  A huge waste of billions of dollars.  Other times that doesn’t seem fair.  Having access to billions of dollars to build a Navy doesn’t make anyone clarivoyant.  You make the best decision you can about deploying resources and hope for the best.  Most of the time you’re not entirely correct, but you’ve probably done better than doing nothing, which I suppose is not an option if you might have to go to war to defend yourself.

In any case, we and our Spruances won the cold war, or so I am told.  It’s another of those things I am conflicted about now, although I wasn’t then.  Whether that’s because of maturity and wisdom or being addled by years of practicing law, well, I don’t know.

Maybe someone will interview that baby in a few years and ask her what she thinks of the United States Navy.

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Miriam Carey

That’s a name everyone in the United States should know.  We here at Lawyers on Strike wrote about her six months ago wondering what, if anything, would be done to follow up on a tragic story that would seem to warrant a lot of serious questions.

I mean, the woman was shot to death in the nation’s capital by police while she drove in her car and apparently made a wrong turn.  She had her one year old child strapped in the back seat.

First, let’s connect a face with the name:

mimcar

 

Very pretty.  Very young.  Seemingly happy.  And productive.

Then, do you remember the saturation coverage the incident received at the time?  That is, as long as an approved, feeding-frenzy type narrative was in play – our institutions under attack by young women in cars with their toddlers strapped in the back seat terrorists or extremists.  When the narrative failed, the story disappeared.  The media lost interest.

This post is not about the police, who do dumb things sometimes just like the rest of us.  This is about the media.  And the elected officials who mindlessly seek political advantage out of tragic circumstances, oblivious to the grim, human reality underneath.  And then the indulgence of them by a media that has no interest when a story doesn’t fit into an approved narrative.

Read the only follow up news coverage, from the online WorldNetDaily.  The fatal wound was apparently to the back of the head.  The “investigation” has taken six months so far and no conclusions have been reached.  No one, other than a lawyer named Sanders, is pressing for any answers.  No one, other than WND showed up at a news conference dealing with the case.

The whole episode is instructive.  The police, of course, are the initial sources of all “information”.  It turns out all of the information was wrong.  She wasn’t trying to crash into the capitol building; she wasn’t “mentally ill”; perhaps most importantly, she wasn’t a threat to anyone.  She was apparently shot to death for no good reason.

A tragic fuck up by the police.

It is to be hoped that the police will be held accountable civilly, not criminally, since this really doesn’t seem to be a case of criminality on their part.  This part is lawyer’s work.  And it’s important work, because maybe after it costs officials a few million dollars they won’t be so quick to pull the trigger. 

But it would also be nice if the media and the elected officials could be held accountable for their inexcusable negligence in applauding a beautiful young mother being shot to death and then for doing their best to smear her, adding cruel insult to even crueler injury.  Not sure how that could be done, but an article or two on WND and a little opinion piece over here at Lawyers on Strike doesn’t cut it.

Even so, John Boehner, Steny Hoyer and Eric Cantor all owe the Carey family an abject and very public apology.

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Very Well Said

A little wisdom for newly minted lawyers, from Norm Pattis.

No, that’s not fair.  A lot of wisdom, really.  And a good read for anyone, lawyer or not.

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I Don’t See The Problem.

A hissy fit this morning from Greenfield and another blawger named Josh Blackman over an opinion by Judge Posner of the 7th Circuit US Court of Appeals.

It’s interesting, because on the one hand I found the little experiment the judge conducted in chambers kind of startling myself, at first.  That is, my first inclination was that this was improper.

But thinking it through a bit, juries do that kind of thing:  conduct some little experiment while they are deliberating to see if they can figure out who’s telling the truth.  Watch 12 Angry Men sometime.  Seems like that’s all the jury did when they weren’t at each others’ throats. 

Anyway, if a jury can do something like that can’t a judge, to the extent the judge has to determine a fact?

Of course, appellate court judges do not determine facts.  Not directly.  As Blackman and Greenfield point out, the record on an appeal is fixed, nothing else comes in or out.  That’s pretty basic to the whole idea of an appeal, at least in our system.  Such as it is.

But there are limits to this principle.  As a general rule, intermediate appellate courts do have jurisdiction to ‘review’ – that is, second guess – the fact findings of the trial court.  And there are times they should do so.  Many more times than they actually do, in my experience. 

The ‘standard of review’, it is constantly noted, is ‘highly deferential’, although deference is as deference does and there is an obvious disparity on how much deference there is depending on which kind of litigant benefits:  lots and lots when the favored litigant has prevailed in the trial court; none when the disfavored litigant has prevailed.

But I digress.

Greenfield and Blackman are a bit off, and they’re being a little unfair to Judge Posner.  The evidence in an appeal, it is true enough, is fixed in the record.  But evidence isn’t always res ipsa loquitur.  Interpretation is sometimes necessary.  A fact finder is entitled to interpret where he feels he needs to, and a judge reviewing a fact finder is entitled to do that, too.

There are some contentions that are true, or they are false, and the conclusion is not debatable, at least not on the practical level on which we operate on a day to day basis and not, therefore, in our courts of law.  If we fairly assess what an appellate judge might do in ‘reviewing’ the facts found by the trial court, he surely has an obligation to point out a fact finding that is clearly wrong, or absurd.

We’ve been over this idea here at Lawyers on Strike several times.  We return to it occasionally simply because we reject the notion that the “adversarial process” requires courts to seriously entertain the clearly false, or the clearly fraudulent, or the clearly stupid.

Now is there a danger that a judge, or a jury, will mistakenly conclude the degree of clarity required, or involved?  Sure.  We live in a dangerous world.  Greenfield:

The possibilities are endless for judges to conduct secret experiments in their chambers, or on the streets, or, if they have any clue how to gain access, on the internet, to figure out “who was telling the truth.”  The flaws of the experiment will never be known, never be subject to question or challenge, and yet will dictate the outcome for people’s lives and fortunes.  What could possibly go wrong?

 

Two things here:  first, Judge Posner’s experiment wasn’t “secret” – he disclosed it in his opinion, for which he should be given credit, not excoriated.  And second, it doesn’t seem quite right to complain that a judge wrongly believes himself to have some sort of clarivoyance about assessing witness “demeanor”, and finding the truth that way; but then complain more loudly when he eschews that kind of superstition for a more rational and better method. 

At some point the fact finder – or the fact reviewer – must make his decision and the time for the advocates to have input is past.  That might rankle ego-centric lawyers who feel their input can be both absurd and never-ending and the fact finder must listen to it, but I have to disagree.

There was nothing wrong with what Judge Posner did, especially considering he disclosed it in his opinion.

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Logic

A written judicial opinion might be “well-reasoned” or not, but either way an implicit reference is being made to logic, which provides a lot of rules for what is called reasoning.

Ironically, reason cannot provide its own justification, which is to say that everyone understands certain basic rules of reasoning and lives by them, for the most part unconsciously; either way, though, at the end of the day no one knows why these rules of logic and reason should be the rules.*

But all that aside we employ basic reasoning all the time.  Day to day life would be chaotic and unintelligible if we didn’t, and even the extreme skeptics who deny there’s any such thing as rational thought processes are forced to admit that much.

This comes to mind because I have been recently having an exchange with a police officer turned author named Martin Preib who has managed to effectively (if unintentionally) display much of what is wrong, logically, with the usual cop group-think.  First and foremost, cop group-think becomes a big problem when it ignores basic rules of reasoning.

Here’s one revealing exchange.  Martin says:

The prosecutor and detectives in that case [i.e., the Central Park Five case - ed.] have been put through hell,

I say in response:

Nothing compared to what their victims, or indeed any victim of any wrongful conviction have been put through.

This addresses Martin’s claim that cops and prosecutors have suffered over the Central Park Five case by pointing out that the wrongfully convicted suffered more.

Martin’s response to this is to first misquote and then totally misconstrue my response, deliberately or not:

Nothing compares to what the victim of a wrongful conviction went through? Tell that to the woman who was raped in Central Park or the families of the victims in the Porter case…

Making an argument so obviously invalid – basically changing the subject – should fully discredit the interlocutor.  If it was done intentionally he’s not honest.  If it was done unintentionally he reasons too poorly to contribute meaningfully to an argument.

And this was after I had pointed out to Martin that one of his arguments was a non-sequitur and another was an ad hominem.  And notice further that after this last one, Martin proceeds to make an appeal to emotion by aligning himself with the rape and murder victims.

Arguments like this should always fail in the courts.  But they frequently don’t, as long as they are made by favored litigants (government, bank, insurance company).  They will, of course, always fail if made by a disfavored litigant – like a criminal defendant – going up against a favored one. 

It wouldn’t be an exaggeration to say that this – the double standard exposed so plainly by the most elementary rules of logic – is the primary cause of the system’s many failures.  More than faulty eyewitness testimony, more than police or prosecutor misconduct even, because the double standard breeds the police and prosecutor misconduct in the first place by rewarding it with success.

Martin is offended and combative - rather than chastened - when I point out his poor reasoning skills.  And why not?  The system has taught him and other police and prosecutors to behave precisely this way.

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* There are big epistemological questions lurking here, but they are beyond the scope of this little post.  I might deal with them some other time.

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