Thinking It Through

Are lawyers, as a group, better at it?  They’re supposed to be.  What with all the schooling and testing and pomp and ceremony about it all, there’s a lot of wheel spinning if they’re not.

Odd when lawyers themselves deny it, then.  Or it should be odd – but it isn’t.

Why would lawyers do that?  I think I know the answer, or at least part of the answer.  But it’s not relevant right now.  Maybe later.

Other professions seem to have no trouble puffing up their chests and blowing hard even when that’s all it amounts to.  I have my occasional online encounters with economists because I write a lot of stuff around here about economics.  Economists are constantly claiming that they know things other people don’t, that they have special expertise in all manner of analysis of commerce and money.  They seem to forget, or do not know, that the law has a lot to say about commerce and money, too.  Or they don’t care.  It’s a gaping hole in their understanding not only of the world but of the very subject they claim such expertise about, but that doesn’t stop them from lengthy dissertations in which they just leave out all the law stuff.  Which can be fine sometimes and for some purposes.

But that’s not the point.

There are some lawyers that are like that, too.  But they’re almost always the bad lawyers, people who maybe shouldn’t even be lawyers at all.  Jeff Gamso is uncertain and agnostic, but Tom Moran isn’t.  The Dunning-Kruger effect is rampant in the legal profession.

The worst thing about dogmatically applying the “truth is unknowable” principle is that you wind up denying what is obvious; and because this is such a prevalent principle in the legal profession the denial of the obvious happens there more than any other profession I’m aware of.  And this is not only perplexing and frustrating; it is destructive and often times downright evil, because the scenario frequently appears where there has been a wrongful conviction in a criminal case.  How many times is someone later exonerated by DNA evidence only after years of fighting to get DNA tested?  Jeff Gamso rightly complains about this.  Often.

But let’s not be abstract about it:  let’s take an example of a situation where the truth is obvious once a reasoned analysis of the evidence is done – you know, the type of analysis that lawyers are supposed to be good at – but the outcome in the courts has gone the other way:  the best one for me to discuss is the one with which I am most familiar – the Sephora Davis matter.

Evaluating the proof, you initially confront this conflict:  Was Sephora Davis driving the car for the robbery, or was she passed out and not participating?  This question has to be answered first, if possible.

And it is very easy to answer it, the supposed conflict notwithstanding, because of the quality of the proof involved.  The evidence that she was driving, and all the evidence that might corroborate that fact specifically, is of a kind that that was generated by police and can be readily fabricated by police or perjured; but the evidence corroborating that she was not driving includes contemporaneously generated medical records and phone records, which were not generated by police and cannot be fabricated or perjured, at least without being easily discovered.

For that reason, a proper evaluation must – must – resolve any conflict on the issue of whether Sephora was driving the car in favor of the proposition that she was not driving the car, and the only alternative on the table is that she was passed out and not driving.

Thus it is a fact, and no rational person could find otherwise given the evidence, that Sephora Davis was passed out and not driving her car at the time of the robbery she was accused of participating in.

And because this can be concluded without question, there is more.

Unlike the problem of whether a traffic light is red or green at a specific moment when the traffic light is continuously changing from red to green, the question of whether Sephora Davis was awake and driving, or on the other hand passed out and not driving, is not something about which people in a position to observe can be mistaken, absent hallucination or delusion of some kind.  Therefore, false testimonial evidence that she was driving must be intentionally false, and if material to the case – and it is – it is perjury.

And since it is established beyond debate that Sephora Davis was passed out and not driving, this means that all the evidence that she was driving is perjury or fabrication.

Then you look to see whether there are other independent indications that evidence tending to show that Sephora Davis was driving the car is fabrication and perjury, and sure enough you find them, the most dramatic of these being the conflict between the Ashley Baker statement and the Todd Gaddy statement, though there are other indications as well.

Thus the conclusion that the prosecution of Sephora Davis was based on perjury and fabrication is as certain and unavoidable as any conclusion based on evidence can be.  And beyond even that, the nature of the perjury and fabrication is such that the instigators of the perjury and fabrication must have included at least one police officer:  Dana Carson.

Now, having thought this through and demonstrated it, and presented the evidence to tribunals whose very purpose is to evaluate evidence to determine the truth, one encounters no reasoned, intelligible evidence or arguments in return, but rather a facile dogma:  the truth is unknowable.  All evidence is equally capable of being disputed.  A mountain of evidence on one side and a crater on the other are dogmatically regarded as equivalent.

This is a much bigger problem than a single case.  This is a system wide epistemological crisis, all bound up with a widely held belief that normally has no serious consequences, but which is fatal to a coherent system of justice.


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Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

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