Saturday, June 25, 2005

Dead Man's Violent Disposition Helps Harvard Student -- at Least Temporarily

A Massachusetts trial judge, applying a (wise) ruling (in another case) by the Massachusetts Supreme Judicial Court last March, Commonwealth v. Adjutant, 443 Mass. 649; 824 N.E.2d 1 (March 14, 2005), vacated the conviction of a Harvard student -- Pring-Wilson -- who had been found guilty of stabbing and killing a man on a Cambridge street late at night. See Boston Globe (online) (June 25, 2005). Defendant claimed that he had killed the dead man in self-defense. Forty witnesses had been prepared to testify to the dead man's violent behavior and propensities but the trial court refused -- under the law applicable at the time, correctly refused -- to admit any of that evidence. (Before Adjutant evidence about the alleged victim's violent nature was admissible only if there was evidence that defendant knew of the alleged victim's violent nature.)

Under Adjutant, whether or not defendant knew of the alleged victim's propensity for violence, evidence about an alleged victim's propensity for violence is now admissible in prosecutions for criminal homicide in Massachusetts courts -- and possibly also in prosecutions for other crimes such in which defendant relies on self-defense or claims mitigation as a result of a physical attack by the alleged victim. (It will be interesting to see if the Massachusetts Supreme Judicial Court extends the rule of Adjutant to non-violent crimes and thus allows, for example, a defendant in criminal fraud case to offer evidence of the alleged victim's fraudulent propensity and acts to show that the alleged victim engaged in fraud in the transaction on which the prosecution for fraud rests. [But question: Can there ever be a fraud case in which a defendant's fraud is a legally-legitimate defensive measure to an attempt by the alleged victim to defraud the defendant?])

Eight of the jurors who returned a verdict of guilty in the original trial of Pring-Wilson were polled and said that their votes for a verdict of guilty would not have been different had they heard evidence of the dead man's violent propensities.

Under the Massachusetts Supreme Court decision -- Adjutant -- not only is evidence of the alleged victim's propensity toward violence now admissible to show self-defense even though a defendant in a criminal homicide case was unaware at the time of the killing of the victim's propensity, but specific instances of violent acts by the alleged victim are also admissible to show the victim's propensity toward violence.

Legalities aside, one thing impeding the chances for an acquittal if there is a retrial is the fact that defendant was carrying a concealed knife when the fracas that lead to alleged victim's death began.
Despite the results of the newspaper poll of the eight jurors from Pring-Wilson's trial, I predict an acquittal if Pring-Wilson is tried again. It's one thing for a juror to hear a newspaper account of evidence, and it's another to hear the evidence in full-bodied form (and at length) in a courtroom. If even just twenty witness testify to nastily violent behavior by the dead man, an acquittal is more probable than not.
Law school exam question: Could a trial judge exclude the testimony of 20 of the 40 defense witnesses about the violent acts of the dead man on the ground that the testimony of the second set of twenty witness is unduly cumulative -- or on the ground that once the first twenty witnesses have testified about the violent behavior of the dead man, testimony to the same effect from 20 more witnesses is irrelevant?
N.B. The favorable opinion I have of Adjutant is not in the slightest degree due to the Massachusetts Supreme Judicial Court's mention in that case of some written text that I authored. I am a scholar and worldly repute matters not one whit to me! (If you believe what I have just said, I would like to talk to you about a bridge in Brooklyn that might well be for sale -- at a quite reasonable price.)

Thursday, June 23, 2005

Disagreeable Opinions; Anti-Religious Tests for Academic Employment at Cardozo?

If I understand him aright, the dean of my law school proclaims that opinions rooted only in religious faith are divisive. See my prior post today.

A divisive opinion is ...

... a disagreeable opinion.

A disagreeable opinion is ...

... an opinion that I disagree with.

Now, let me see, if I have this right, ...

... a divisive opinion is an opinion that I disagree with.


My venerable dean apparently thinks that opinions about controversial issues such as abortion should not be influenced by religious beliefs, but only by non-religious reasoned debate.

Does Dean Rudenstine actually believe that controversies about matters such as abortion can be resolved exclusively and satisfactorily by the application only of the sweet light of reason -- non-religious reason, that is?

Mmmm ...

I say:

Give me your premises, and I will give you your conclusions.

Give me my premises, I will make you yield to my conclusions.

How will we resolve differences of opinion about our premises? Shall we flip coins or throw dice?

And how will the sweet light of reason resolve questions that are not decidable by evidence?

Will the sweet light of (non-religious) reason tell us whether or not we should kill elderly people because ... well, er ... just because they're too old? What non-religious evidence will tell us that this is the wrong thing to do?

Legal education is incompatible with faith, Dean Rudenstine informs us. He can't mean all religious faith, can he? That would be taking things pretty far.

Mmmm... [... Tillers thinking ...] Rudenstine suggests that only some religious faith is obnoxious. He suggests that faith unsupported by evidence is obnoxious. Yes, that's it: he only objects to dogmatic religious faith in the law -- and in law schools.

Well, that's not so bad, is it? But does it follow that Cardozo Law School will have a religious test (an anti-religious test?) for employment as a law teacher? Will the Cardozo appointments committee henceforth be required to scrutinize the religious beliefs of job applicants to see if their religious beliefs are supported by evidence? I can imagine the questions:

1. You say, Ms. Jones, you believe in the Resurrection. What leads you to think ...

2. You say, Mr. Smith, you believe in Nirvana. Or is it Karma? In any event, Mr. Smith, what leads you to think ...

No, no, no! That's too troublesome. Surely henceforth Cardozo can only hire non-believers!

Mmm... Do you suppose you suppose Dean Rudenstine was just trying to twit us ... and all of those college counselors who visited Cardozo Law School on June 9th? Yes, that must be it! (I can only hope that those guidance counselors did not take him seriously.)

Religious Faith and Legal Education

If I understood him correctly -- and if he was correctly quoted -- my dean -- the dean of Cardozo School of Law, a law school that is part of Yeshiva University --, the dean of my law school said that religious faith is incompatible with legal education. Last Friday's issue (June 17, 2005) of the New York Law Journal reported:
Mr. [David] Rudenstine [dean of Cardozo Law School] said that America's law schools have a social responsibility, especially at a time of religious fundamentalism, to foster reasoned debate over the facts and science of such controversial matters. To shirk this role, he suggested, would be to leave the way clear for faith-based organizations to impose "divisive" views.

"Faith challenges the underpinnings of legal education," Mr. Rudenstine declared. "Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."

He added, "Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this."

Well, that's interesting. But I suppose St. Augustine was not a scholar. Neither was Newton. Nor Maimonides. Perhaps not even A. Einstein.

Tuesday, June 21, 2005

The Trial Is the Punishment

The Milosevic trial has been going for ... how many years?

Sometimes Less Is More; Reality Trials

California has not yet learned the rudimentary lesson that sometimes less information (evidence) is better than more.

Or perhaps the explanation for megatrials is simply venality or egomania or cowardice or the adversarial spirit run amok?

Sometimes institutions cannot cure their ailments even when the existence such ailments is palpable to almost everyone. Institutional dysfunctionality. (There's a mouthful for you! Translated: The system has a serious defect. )

But we don't need a reincarnation of the earlier Jerry Brown, who once derided the rule of law as "legalism." (He left California with a Chief Justice who was not much wedded to legalism.) We need "legalism"; i.e., we need the rule of law. We just need remedies for megamaladies such as sex megatrials.

Ah, now I have it! California does believe in soap operas; it cannot resist them; it wants unreal reality trials. The real thing -- a Real.Ordinary.Trial -- apparently just isn't good enough for Californians.

Three Days versus Three Months or Three Years

The trial of Edgar Ray Killen took three days. In California it would have taken three months or three years. Who would venture to say that the quality of justice is better in California than in Mississippi (today)?

What explains the phenomenon of California megatrials?

Not a Reenactment

Yesterday C-Span carried chunks of the 2005 trial Mississippi v. Edgar Ray Killen. I have watched some of these broadcasts. They were fascinating.

Killen is on trial for the 1964 murders of three civil rights workers in Philadelphia, Mississippi.

Killen was not at the scene of the killings. The prosecution's theory is that Killen was the mastermind of the plot to kill the civil rights workers. The defense theory is that though Killen may have been at a Klan meeting where the "elimination" of the civil rights workers was discussed, Killen was a "loudmouth" and not a ringleader.

Despite changing times, there were many references to religion. Of course, that was partly -- but only partly -- because Killen himself was a preacher.

Last night's news reports said that the jurors had reported that they were evenly divided, 6-6, on guilt or innocence. Jury deliberations resume today.