Monthly Archives: August 2017

“Evidence” v. Reasoning

Are we empiricists or rationalists?  Or something else?

Some years ago we had a case where a house exploded.  Just blew to smithereens at about mid day after a late winter snow covering.  When you get a “high order blast” like that, you might suspect a bomb but natural gas, which is pumped into just about every home in the northeast, appears to everyone to be the likely culprit, as indeed it was in this case. Natural gas is probably responsible for a lot  more fires than out and out explosions but is almost never an official suspect there.  More on that later.  But not too much.

The house was occupied by two men who were both killed instantly.  We represented the estate of a woman who was not killed in the blast, but was rather buried under the rubble for a while and badly burned by the ensuing fire.  Many neighbors from the surrounding area had made heroic efforts to free her but were unsuccessful.  One neighbor held her hand and tried to comfort her until he was beaten back by the flames.

The fire department finally freed her and she was taken away by ambulance.  She endured six months of gruesome treatments, including multiple amputations, before expiring in the hospital.

She was the mother of one of the occupants of the house.

Of course such a scene receives a lot of official attention.  The fire department is called and responds quickly – “first responders” doncha know – but there’s more to it than that, because whether it’s a fire or an explosion one thing they want to make sure of is that there’s no more gas being pumped into the location, and so each and every time a fire or explosion occurs in a home in a somewhat densely populated area like a city the fire department gets the word first through a 911 call, and then the fire department calls the local public utility to get them on the scene to shut off the gas supply to the house.

All perfectly reasonable, of course.

But here’s what happens next.  The public utility, which receives immediate notice of the occurrence, dispatches a crew to secure the gas supply to the location, but they also dispatch their “investigator”.  Who is the investigator?  Invariably, he is a retired fireman who is collecting his public pension and now augments that income with a lucrative position working for the public utility.  He naturally leads the younger firefighters, who look up to him not only for his many years of experience but also because he already has what they one day hope to get:  a very good living and semi-retirement based upon his years of service and expertise thus acquired.

This is all understandable.  But it is also latent with unwholesome possibilities, because the public utility investigator’s job can’t help but have an element – relatively stronger or weaker depending on the scrupulosity of the person involved – of seeking to protect the public utility from being found at fault for a disaster which in this case involved two dead people from the get-go and another seriously injured person who would die later.

Want a thumbnail sketch of how this works in practice?  When a house literally explodes and no one has been, say, mixing nitroglycerin in the basement there is little chance for there to be a plausible cause other than natural gas, but without going on about it just take our word that because of basic physics and arithmetic, for every explosion caused by natural gas, there are about 10 fires.

Yet when is that last time you read or heard from news sources that a house fire had been caused by natural gas?

But let’s leave further questions along those lines for another time.

In the case at hand things went down pretty much as we just described.  Of course, everyone wants to know why the house blew to smithereens like that, and that’s what the fire investigators want to tell us.  Because of the high order blast we pretty much know it was natural gas, but how did the gas accumulate and what sparked the blast?

The official investigation focused on one male occupant, the son of the woman whose estate we represented later on.  It was a deliberate act, it said.  It was suicide.  The son was “troubled”, and decided to take his mother with him, so he waited until she arrived for a visit before he blew the place up.

What a horrible story.  What “evidence” led the “investigation” to conclude this?

In the kitchen of the house there was a gas stove, a type you have probably seen many times, with four burners on top controlled by valves operated by knobs on a panel on the front of the stove.  Three of those four valves were turned on in the ‘high’ position.

The son was a journeyman mechanic who had had some minor scrapes with the law.

That’s it.  There was no suicide note.  There was no advanced threat that anyone knew of. There had been no domestic violence between the young man and the mother.

One obvious consequence of this conclusion, of course, is that the public utility company, whose ‘investigator’ would naturally have a lot of influence with the other investigators, would certainly not be at fault for the rogue criminal act of one of the occupants of the house.

So years later we get involved.  We decided to do what seemed at the time an obvious thing:  find previous occupants of the premises to see if they had anything to contribute in the way of evidence.  And that’s what we did.  We tracked down the previous four or five tenants of the house.  And they all said the same thing:  there was often a very strong gas odor in the stairwell leading up from the basement to the side door of the house, the door that was commonly used for ingress and egress.  You would enter the house through that door and you’d be on a landing.  To the right were the stairs leading to the basement, and straight ahead would be a few steps up to a door that opened into the kitchen.

Where the stove was.

The most recent tenants – that is, the ones just prior to the explosion – were a nice young couple who said they had moved out because despite a number of 911 calls about the gas odor in the stairwell the condition had never been rectified and they believed it was unsafe.  This was all contemporaneously documented.

So.  You have two investigations:  one by “officials” done at or about the time the house exploded; and one by us, a couple of years later.*  These two investigations went in very different directions and reached very different conclusions.  As we said, the “officials” focused on a suicide theory, and we concluded that natural gas coming from a gas leak outside the house “migrated” into the basement of the house and in certain conditions would accumulate from there in sufficient quantities to cause the explosion that actually occurred.

The “evidence” – that is, the facts – supporting both investigations and their conclusions were not in dispute. That is, we did not dispute that the three burners on the stove were fully open in the “high” position, and we did not dispute that the deceased son was a journeyman mechanic who had had some minor scrapes with the law in his time on earth.  And no one, to our knowledge, disputed our evidence in the form of all those former tenants; an expert who opined that gas can “migrate” surprisingly long distances and accumulate in a remote location from a gas leak (Indeed, when we sued the public utility company their own records revealed that they were aware of just such scenarios.); an identified leak in a service line pipe, close enough to the house, that we knew existed at the time because it was eventually fixed by the public utility company and they had made a record of the repair; and a disinterested eye witness from the house behind, who was changing his granddaughter’s diaper, looking out a window, observed our decedent arrive by car, walk up to that side door, open it and…boom.

So much for the evidence.  What remains to be done is reasoning.

We start with the proposition that the law prescribes a rebuttable presumption against suicide.  That is, by law we are to disbelieve suicide unless there is evidence that overcomes our disbelief.

We then consider the official investigation evidence.  We conclude that journeyman mechanics who have had minor scrapes with the law are relatively common, but are not commonly suicidal for those reasons.  And we conclude that the gas stove burners in the “high” position are evidence of…cooking on the stove, which is the ordinary use of the burners on the stove, not homicidal and/or suicidal activity.

Indeed, we consider the conclusion that either of these items of evidence, individually or together, support a suicide theory to be unserious in the extreme, especially in view of the law’s instruction that the absence of suicide is to be presumed.  We would say the idea was laughable, but we are talking about the violent and untimely deaths of three people.

By contrast, our evidence, gathered later, naturally leads to the conclusion we drew:  that gas from a gas leak from outside the house had been migrating into the basement and eventually caused the house to explode, killing three people.**

The court before whom we appeared “reasoned” differently, however.  It’s like this:  the suicide theory is “official”, coming from the fire department and the public utility, and is therefore credible; the utility company’s expert is from MIT; the law firm representing the utility company is the best.  The migrating gas leak theory is from a lesser lawyer who just wants money no matter how much he pretends otherwise.

Which is to say that the court before whom we appeared didn’t reason at all.  It judged, of course, in the sense of deciding who should win and who should lose.  But there was no reasoning process worthy of the name involved.  It would be fairer to say that the court’s decision rested upon one reverse ad hominem built upon another – that is, a credential contest – culminating in the non-sequitur that the house exploded due to the deliberate suicidal act of one of the occupants.***  “Reasoning” at this low a level should be precluded by a high school diploma; its presence in people who have completed university and graduate school is a staggering indictment of something – what, we dare not say at the moment.

In any event, this low level is what routinely passes for reasoning in American courts, from the top on down.  Indeed, our last post was about a recent decision from the SCOTUS endorsing the intellectually appalling “whoever gets the most witnesses wins” idea of trials, an idea trial courts themselves try to eradicate from the minds of potential jurors, or at least are supposed to, through standard jury instructions.  The “most witnesses” rule and the “better credentials” rule occupy the same intellectual terrain:  the hopelessly inane.


Why do we bring this up, you ask?

Well, because it’s an example of the different, but related roles of:  a) evidence gathering; and b) the reasoning process, in order to arrive at the truth or some approximation of it. Of course, a significant segment of the legal profession considers this a fool’s errand ab initio, and it’s only our opinion but we think that is a deceptively large part of the problem we are discussing.

Query:  of the two – that is, the gathering of evidence and the reasoning process – which is more important?  This will determine the answer to the question we asked at the beginning of this post.

Answer:  in general, it’s hard to say, both being a sine qua non of concluding anything at all; but in the specific example we have described it should be relatively easy to understand that the reasoning process is the part that makes a difference in figuring out what happened.  That is, finding the truth of the matter.  Because with two and only two theories to choose from, one of which is supported by evidence and properly reasoned, the other being a more or less idiotic non-sequitur, right reasoning dictates the result.

But now, query:  what if a judge is a dogmatic empiricist?  That is, the judge believes that “evidence” is all that matters, and “neutrality” requires agnosticism as to the meaning of the evidence?

Answer:  the dogmatic empiricist rejects the valid role of reasoning and is forced to regard a well reasoned interpretation of evidence and an idiotic one as equivalent.

Our ancestors in thought, from the ancient Greeks through the medieval thinkers to were aware of this problem, and so for centuries regarded the reasoning process as superior to observation.  Empiricism inverts this relationship, regarding reasoning as “the servant of the passions”, among other less salutary things, and essentially denying the obvious problem that empirical data, without rational interpretation, is just so much random intellectual noise.

Ideas have consequences, especially in the justice system and the courts.  Ugh.


* We fancy ourselves an “official” as well, having been thoroughly vetted for competence and moral integrity, but there doesn’t seem to be a lot of agreement with us on that point.

**That is not enough, by the way, to say that the public utility company was at fault, in the sense of being negligent.  But it does make such a result possible, whereas with the official suicide theory it’s not possible.

***Yet another factor in the court’s “reasoning” was the relatively low status of the dead and the low rent character of the house and the neighborhood.  We have no further comment.







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SCOTUS Follies – Brady Edition – As The Worm Turners

Oh, dear.

This one is hard to explain.  And more than a little painful.

On June 22nd the SCOTUS came out with its decision on Turner v. United States.  The question presented is that often thorny one when it comes to “Brady” material:  is it material?  Which is not as nonsensical as it sounds because materiality in the second sense refers to relevance and making a difference in the outcome whereas in the former sense it just means “material” as in, you know, matter.  Stuff.

But we digress.

One is struck by the similarity of the facts here to the Central Park Jogger case, about which we have previously opined to the usual effect – which is to say none – but let’s not dwell on that either.

In Turner the prosecution had taken the position at trial that the poor deceased victim was killed by a savage group of youths in a random and senseless act of group violence. Like the “wilding” theory in the Central Park Jogger case.

And we say “theory” because in the Central Park Jogger case of course the whole “wilding” thing turned out to be a law enforcement fantasy that was nevertheless testified to by numerous “independent” witnesses not to mention confessed to by the alleged perpetrators.  Because here’s what happens:  the law enforcement fantasy narrative story takes hold not because it truly reflects reality (although it might) but because of an agenda harbored by one or more law enforcement official(s), or sometimes, let’s face it, just randomness. The “witnesses” tell the same false story because even though they are seemingly independent from law enforcement and from each other, they are not that at all:  they are mere props in the play these officials are writing and peddling, mouthpieces who say what the law enforcement officials want to hear them say, signing off on whatever it is that they can offer to support the story.

Then everyone is locked in, and the game is on.  Do the government’s witnesses hold up? They mostly do, no matter how unbelievable they are in other contexts.  After all, they have the power of government behind them.  How does the accused deal with that?  This is the central problem, and the central reality, of criminal defense.  To call it a nearly insurmountable difficulty is to understate the problem dramatically.

To anyone who has practiced law on the criminal defense side, or indeed other contexts where one is up against an official narrative, all of this is depressingly familiar, of course.

So what happens when later – almost always too late, in so many ways – an inconvenient fact emerges and we learn that the official narrative was entirely false?

In the Central Park Jogger case there was a single perpetrator who had done virtually the same thing to another victim in the same area, and after all the “wilding” youths were safely locked away in the New York prison system, this perpetrator confessed and it was all confirmed and, you know, a big oops but then again was anyone really at fault for all this since this is way much what we do most of the time when we have a victim and a desperate need to punish the perpetrator?  Or perpetrators, as the case may be.  The cops say it wasn’t their fault, they didn’t coerce anyone and the prosecutors say it’s not their fault, they just prosecuted the case the cops served up, like they’re supposed to.

But now we have the Turner case out of the SCOTUS, and now we know who’s at fault: it’s the SCOTUS.

If Turner wasn’t a SCOTUS opinion it would be suitable for satire, the mockery directed at its authors.  Alas, it is a SCOTUS opinion.  Thus it is no laughing matter.

One of the most high profile wrongful convictions of the last century – the convictions of the Central Park Jogger kids – seems to have completely escaped the attention of the Turner majority.  Indeed, even Justice Kagan’s dissent seems to think the majority’s position is arguable.

It isn’t.

Faced with a factual scenario remarkably similar to the Central Park Jogger case, the SCOTUS finds that the very same kind of information that resulted in the exoneration in that case wasn’t “material” enough to amount to a Brady violation in Turner; that is, information pointing to another single perpetrator (or maybe with one accomplice, certainly not the gang-rape scenario that convicted Turner and the others) would not have made a difference in the outcome of the trial, according to the Turner majority.

What is the “reasoning” leading to that improbable conclusion?  Just this:  the entire prosecution case depended on the “group attack theory” and there were numerous witnesses that told that story.  The “single perpetrator theory” had no realistic chance of overcoming this prosecution narrative because there were too many witnesses supporting it, all of whose testimony would have to be deemed false by a jury.

We are not making this up.  Here’s the money quote:

The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators…The problem for petitioners is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and, through coordinated effort or coincidence, gave a highly similar account of how it occurred; that Thomas, a disinterested witness who recognized petitioners when he happened upon the attack and heard Catlett refer to it later that night, wholly fabricated his story; that both Eleby and Jacobs likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave the park to rob her.

Dear God help us.  Where to begin?

In the first place, Justice Kagan noted the obvious in dissent:  evidence tending to undercut the entire prosecution theory is “material” practically by definition.  The majority’s conclusion is to that extent basically an oxymoron.  Incoherent, in other words.

In the second place – for Chissakes – there’s a standard, or pattern, or model jury instruction – that is, a rote instruction given by the judge to the jury in every trial after the proof is closed, and pretty much given everywhere, so far as we know, both in state and federal courts, telling the jury specifically not to do exactly what the SCOTUS majority seems to think they have to do – namely, to decide what to believe based on the number of witnesses:

Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.

That’s part of Instruction No. 1.08, promulgated by the US Court of Appeals for the 6th circuit.

Any lawyer who has tried a few cases, or maybe even one, knows about this instruction. The only Justice on the Court who has ever tried a case, however, is Sotomayor.  And she did so only as a federal prosecutor which is, you know, better than never having tried a case at all.  But it’s also many orders of magnitude less difficult than defending the accused.  There’s really no comparison.

The significance of the Turner case, then, is not that the convicts get screwed over, because in appeals courts that outcome is so common as to be completely insignificant. Nor does Turner do much more to our Brady jurisprudence than perpetuate it, perhaps adding a bit more incoherence, but not enough to be really significant.  It’s too “fact-bound”, – bringing up the additional issue of why SCOTUS ever took it up to begin with – but never mind.

No, the real significance of the Turner case is this:  it is a stark illustration of the fact that our appellate judges are no longer “lawyers” in the sense that term has been historically understood.  Put simply, they have never tried a case representing an individual.  They are simply not competent to decide what Brady materiality means.  And that goes even for the Turner dissenters.

That is, this is not a case of bias, where the Justices might (indeed, do) have a built in preference for the government or institutional litigants generally.  Bias is a less serious problem because it can be overcome in this or that case.  Incompetence can’t be overcome except by acquiring competence.

Could the Justices acquire competence in the area?  No.  Realistically, this kind of competence can be acquired only before taking the bench, not after.   That is to say, the path to competence is the crucible of representing an accused person at trial.  Not one of our SCOTUS Justices has ever done that, and they can’t acquire that experience now, because sometimes in life opportunities pass you by and you can’t go back.

In other words, the SCOTUS justices are terminally, irremediably incompetent.  At least when it comes to understanding trials, which is probably the sine qua non of being a lawyer.

In reaching this conclusion we note in passing that we have some august company: Richard Posner of the 7th circuit, who apparently thinks that appellate judges should have at least presided over trials, something none of the SCOTUS Justices have ever done either.  But then again like prosecuting, merely “presiding” as a judge is simply not in the same category of difficulty as actually trying the case as a lawyer representing the disfavored litigant.

And Posner, of course, has never tried a case either.





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