I sometimes worry that I have an inability to properly explain myself. One of the good things about writing a blog is the daily challenge of coming up with something cogent and interesting that you explain to others. Like anything else I have done, there are times I’m probably somewhat effective and other times I’m probably not.
When I look back on all the posts over the nearly one year period I’ve been doing this, if I had to pick the best post it would be this one. It seems to me to say what it has to say briefly and clearly and persuasively. Which is, you know, kind of the point of putting these things up here.
I don’t know how to define “intelligence”, as such. Psychologists have their measures, because that’s their thing. Even in that context, I’m supposed to be quite an intelligent person, though by no means what anyone would call intellectually gifted. Good enough for government work, I think. Maybe a bit more.
I have characterized the statements of Ashley Baker and Todd Gaddy as “smoking guns“. Now to me it is obvious. In fact, Ashley Baker’s statement all by itself is a smoking gun, even without taking into account its contradiction with Todd Gaddy’s. I don’t think it requires any special intellectual gift to see that, and indeed if it did you could probably not fairly characterize it as a smoking gun.
On the third or fourth trip I made to the Appellate Division before finally deciding that they were never going to do anything – which, I have to admit, given the well known pattern of that court’s behavior in this and many other cases, taking three or four times to figure that out somewhat undercuts any claim I might otherwise have to being “quite intelligent” – I tried to explain to them the “best evidence rule”, in case they were confused about the significance of Ashley Baker’s statement.
The best evidence rule is an elegant and ancient logic-based rule of evidence that excludes inherently less reliable “evidence” offered to contradict, or even supplement or amplify, inherently more reliable evidence. It is still part of the law of evidence, but has fallen into disuse because we have ipads or something. Or maybe because we have come to believe that there is no “inherent” anything, since in the 20th century that was the intellectual fad and it fit nicely with our experience of mass wars and the indiscriminate annihilation of human beings for no good reason. As the century wore on in its ghastly reality, talking of “inherent” this or “inherent” that just seemed quaint.
Still, no one ever said the best evidence rule was no longer good law; you just had to go back a ways to find any cases dealing with it.
In New York, one of the standard texts on the rules of evidence is called “Richardson’s On Evidence”, or maybe now it is “Prince-Richardson’s”. In any case, there is a very short section in that book dealing with the best evidence rule and the related “parol evidence rule” but both rules are so little used anymore that even Richardson’s seems a bit confused.
I explained it to the Appellate Division this way, citing Mahaney v. Carr, 174 NY 454 (1903):
Surprisingly, Prince-Richardson’s seems confused on the meaning of the “best evidence rule”, implying in section 10-101 that it pertains only to the requirement to produce an original writing as opposed to a copy, unless the absence of the original can be satisfactorily explained. This is not correct. The best evidence rule is a general rule of exclusion: inherently less reliable evidence will not be heard to contradict the best evidence that is already available. The rule is correctly applied in the Mahaney case, which refers to this rule of evidence as “elementary”, barring a Plaintiff from proving her case through testimonial evidence concerning a testamentary document that had already been reduced to writing. Id. The best evidence rule is most similar to the parol evidence rule, but the latter applies only to contracts, whereas the former applies in any situation where proffered evidence is necessarily inferior to other available evidence. Thus Prince-Richardson is closer to the truth in section 10-102, wherein it states: “The best evidence rule prevents fraud or perjury which might be attempted if the parties were at liberty to prove the contents of a writing by parol.” Therefore its application to the case at bar, and in particular the statements of Todd Gaddy and Ashley Baker, could not be more fitting.
By the time investigator James Monroe and I went to interview Todd Gaddy and Ashley Baker in Mount Morris in November of 2006 their written statements to the police were almost three years old. The point of the interview was not to confirm the statements themselves since there was nothing they could say, three years later, deviating from what they had said earlier that would not “necessarily” be less reliable. Rather, the point of interviewing them was to get information about the circumstances surrounding the taking of the statements that was not contained in the statements themselves.
Which, because they don’t know about the best evidence rule, they readily provided, even as Todd Gaddy, who was already being intimidated by the police tried to alter the account contained in his January 24, 2004 statement. Through “parol” as we lawyers say. Meaning, in other words, that it didn’t matter. I wasn’t even really listening to that part.
What did matter was that Gaddy related how the police came looking for Shaun Theriault that day (January 24, 2004) since Theriault was the only suspect in the whole robbery thing they had not yet arrested. They knew Gaddy and Theriault were hunting buddies, because everyone knew that. They found Gaddy and Baker and took them down to the station and put them in separate rooms. Gaddy was interviewed by two unknown Mount Morris police officers and gave them the type written statement that is posted on this blog.
Baker was interviewed by Carson alone, who hand wrote her “statement”.
So we kind of did this interview with Gaddy and Baker and left promptly, because once all this started I never really felt safe in Mount Morris. One of the reasons I wanted Jim Monroe to go with me was for protection. It’s been like that.
Now, I agree with the Court of Appeals from 1903 that the conclusions that must be drawn from the Gaddy and Baker statements are an “elementary” function of logic and and application of the best evidence rule which embodies that logic. And when that court and I use the term “elementary” we’re saying that anyone of reasonable, normal intelligence will understand.
Now it could be that very slow witted people will not understand. But there are no lawyers or judges who are slow witted. They may be perfidious bastards and often are. But they are not slow witted.
So, another one of the big problems in letting matters stand where they are in the Sephora Davis matter is that it would mean that the justice system functions at a sub-normal intelligence level, and it can never, ever do that. We require certain intellectual abilities in our lawyers and judges precisely to prevent that, not just most of the time but 100% of the time.
The truth is, of course, that the system is selectively stupid, as Jeff Gamso and others chronicle over and over. Meaning, of course, that it’s not really stupidity at work, but perfidy. Malevolence, even.
But we won’t go there right now. Right now, we’ll just remember that our ancestors not only handed down to us a constitution, but also an intellectual tradition that included such sublime and elementary ideas as the “best evidence rule”.