Daily Archives: October 15, 2011

Swimming In A Sea Of Falsehoods

When I first saw the Ashley Baker statement I didn’t immediately jump to the conclusion that it was fabricated evidence, even though I knew that Sephora was not “the driver”, and even though I knew that there had been a lot of perjury to the effect that she was.

I knew, in other words, that the supposed declaration by Theriault that “Sephora was the driver” was false, but that did not make the statement in which that declaration was contained – the Ashley Baker statement itself – a fabrication.  Maybe Theriault did say it.  Maybe Ashley Baker did overhear it.  That’s what the statement says on its face, after all.

Unless and until you become open to the possibility that you are swimming in a sea of falsehoods, the facial declarations of a written document retain a power over your mind that they shouldn’t have in that situation.  The mind recoils at the idea that what it perceives through the written word is not intended to inform or reveal to it, but rather to deceive it.

Thus my first reaction to seeing the Ashley Baker statement was not that it had been fabricated, but I was vaguely troubled by it, beyond just the falsehood of the declaration that “Sephora was the driver”.  It was a gut feeling.  But by the time I saw it for the first time, in the fall of 2006, I was more used to being lied to and it wasn’t as paralyzing.  It was more…interesting.

Still, it gives you pause.  I remember carrying a copy around with me for a few days and looking at it periodically, parsing everything about it to see if I could get a more tangible sense of why it bothered me.

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A Little More On Napue – When “Facts” Are Not Facts

There’s even a little more going on in that Napue opinion.

Technically, the SCOTUS didn’t independently find as a fact that the prosecutor’s retreat, when he testified at Napue’s state court hearing, from what he had said in his earlier coram nobis petition for Hamer was simply incredible, as a matter of law.  They didn’t have to:

On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill. 2d 566, 150 N. E. 2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner’s trial, a finding which the State does not contest here.


Emphasis supplied.

Once the State conceded the point there was no basis for the SCOTUS to discuss it.  But the State tried to get the win in the SCOTUS through the back door, so to speak, by arguing that the SCOTUS was bound by the Illinois State Supreme Court’s finding that the now admitted perjury had not affected the outcome in Napue’s trial.

Fair reading:  When the SCOTUS launched into the discussion of how they would independently review the factual record and make their own determinations, it was animated not just by the explicit fact finding they were discussing – that is, the determination that the perjury had not affected the outcome of Napue’s trial – but also by the outrageous lying and dishonesty of the prosecutor in the first place:  suborning perjury, exposing himself in his coram nobis petition, and then having the gall to shade his testimony at Napue’s hearing.

And more than that, it was a shot across the bow to the Illinois courts, that ridiculous “fact findings” were unacceptable.  After all, the Illinois trial court had gone along with the prosecutor’s glaring misconduct.

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