Corpus Delicti in Plures Partes Divisa Est in My Home Town

Much of the dismembered body of a murdered Jersey City Heights woman is still missing ...

...

"Apparently [her husband, the suspect] disposed of a portion of her," said Hudson County Prosecutor Edward DeFazio....

Josanna Saviono's ... head was found in a bowling bag and her feet and one arm were found in the home's attic crawl space...

...

The only body part found during [a] search [on Thursday last] was one verterbrae [sic] ...

...

Investigators believe that after Thursday's search, it is very unlikely that additional body parts will be found....

Michaelangelo Conte, Husband Got Rid of Remains, Cops Say, The Jersey Journal p. 1 (March 19, 2005).

Substantive Legal Rules and Preparation for Proof in Litigation

Litigators face an enormous array of possibilities when they engage in litigation.

See, e.g., my blog Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation

They look not only to the immediate steps that might be taken but also to steps that might be taken after possible immediate steps, and these successor steps are also typically numerous.

See id.

Like chess players, litigators frequently must try to envision the possibilities to a depth of two, three, four, and more levels. (This is clearly not easy to do.)

See id.

If tools for the management of this complex activity are to be developed, it is necessary to spell out the ingredients of this complex activity.

The possibilities that litigators (imagine they) face in litigation are the result of a variety of factors. One of these factors is legal rules. This note attempts to spell out the role that certain types of legal rules play in decision making about proof in litigation.

The legal rules that play a role in lawyers' decision making in and about litigation and proof in litigation are of various kinds.

These legal rules that influence such decision making include substantive legal rules ("theories of liability"), affirmative defenses to substantive theories of liability, and procedural rules of various kinds.

Some substantive legal rules are primary substantive rules that either mandate or authorize the imposition of a legal remedy under various specified types of conditions. Legal professionals sometimes refer to these sorts of rules as "legal theories of liability."

There is another species of substantive rules. These rules create affirmative defenses or defenses in the nature of affirmative defenses. This species of substantive legal rules specifies the types of circumstances under which a set of conditions that is normally, or otherwise, sufficient for liability under some legal theory is overcome or defeated.

Procedural rules also figure in lawyers' decision making in and about litigation and proof in litigation. Many procedural rules are "interim" rules in the sense that many procedural rules specify whether and the manner in which further legal proceedings and further steps in litigation and proof may and may not be taken. Like substantive rules, procedural rules have definitions (whether precise or imprecise) that amount to requirements. These definitions, or requirements, or elements, specify the conditions under which some procedural step may (or may not) transpire. As in the case of substantive rules, each of these primary procedural rules is normally supplemented by a rule or rules that specify the kinds of circumstances or conditions -- the special conditions -- under which any authorization that flows from compliance with the requirements of a primary rules is defeated or overcome.

Interim procedural rules sometimes (but not always) include elements of substantive legal rules that may apply if a legal proceeding mutates into a final phase of adjudication such as a trial. Not all interim procedural rules have this forward-looking and substantive thrust, but in this meditation let's focus on procedural rules that govern proceedings prior to the final phase of adjudication on the merits and on interim procedural rules that do incorporate substantive rules that can in principle apply in a final phase of adjudication such as a trial. So here our focus will be on procedural rules such as those governing summary judgment in civil litigation and we will try to spell out how these sorts of procedural rules can affect or channel litigation and proof processes.

On this blog I have previously noted that proof in litigation involves both (i) the cognitive states (beliefs) of fact finders such as judges and jurors and (ii) the decisions, choices, or acts of such fact finders a/k/a decision makers. See Two Lawyers and a Judge Shape a Lawsuit (1:48. p.m., January 28, 2005). I also noted that actors such as trial lawyers present fact finders with evidence such as the testimony of witnesses in an effort to awaken certain cognitive states (beliefs about facts) and elicit certain decisions (e.g., verdicts) by such fact finders a/k/a decision makers. See A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit (4:24 p.m., January 28, 2005)

Although it is useful to appreciate that forensic proof aims to influence both the cognitive states and the choices of fact finders such as jurors and judges, any adequate account of forensic proof should also help to explain which issues or questions become the frame of reference for the lawyerly and adversary battles over the fact finders' beliefs and choices. How does the legal process influence judgments about which beliefs and choices matter in processes such as litigation?

At trial -- in the final phase of factual adjudication -- substantive legal rules play a central role in determining which questions the fact finder must form beliefs and make decisions about. Even before trial, however, substantive legal rules can and normally do play an important role in determining the selection of issues for adjudication at trial. One way in which that happens is by the incorporation of substantive rules in interim procedural rules. Such interim procedural rules serve as gates that can open or close to certain kinds of substantive disputes and battles in later phases of legal proceedings such as trials. In the paragraphs that follow I sketch how "interim procedural rules with substantive content" perform this sort of gatekeeping function.

Consider some definitions and stipulations:

Legal Theory i = Legal Requirements for Liability under (Essential Legal Elements of) Legal Theory i

Affirmative Defense k to Legal Theory i = Legal Requirements (Essential Conditions) for Defeat of (Essential Elements for Overcoming) Liability under Legal Theory i

Proof (Disproof) of Legal Requirement, Condition, or Element = Evidence Showing an Event (Absence of any Event) Instantiating the Legal Requirement, Condition, or Element

Preliminary Proof (Disproof) of Legal Theory i = Provisional (Preliminary) Proof (Disproof) of Events Instantiating Some or All Essential Elements of Legal Theory i (Affirmative Defense k)

Final Proof (Disproof) of Legal Theory i = Final Proof (Disproof) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)

Final (Cognitive) Proof (Disproof) of Legal Theory i = Legally-Sufficient Degree of Persuasion (Strength of Belief) in Authorized Decision Maker of Occurrence (Non-Occurrence) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)

Final (Legal) Proof (Disproof) of Legal Theory i = Choice of Decision Maker to Declare Occurrence (Non-Occurrence) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)

The moral of the preceding definitional and conceptual story is relatively simple: whether a particular path to a possible final forensic battle -- to possible final proof or disproof of one particular set or sets of substantive legal requirements -- is open or closed frequently depends in part on the outcome of a preliminary skirmish or skirmishes about one or more of those substantive legal requirements, on the outcome of adversary attempts at preliminary proof and disproof of substantive legal requirements. But this simple insight is also basic: armed with this simple insight, it is possible for us to begin developing a tool (e.g. a visual tool), or a procedure, to depict how trial lawyers can organize some of their thinking about the relationship certain kinds of legal rules and the choice in and about proof in litigation that are available to trial lawyers who are engaged in litigation or contemplating the possibility of litigation.

Sample Space Ignorance, and the Nature of Investigation

If you find the logic of standard probability calculus compelling -- as I do -- AND if you are always unsure of your ground -- as I am -- AND if you believe -- as I do -- that fact investigation involves uncertainty, THEN you feel compelled to explain over and over -- and I do! -- why standard probability theory does not capture, or portray, the way thought moves when the mind is engaged in investigative discovery, in relatively radical forms of discovery.

Taking my cue from the thinking or suggestions some very enlightened people (e.g., Glenn Shafer, David Schum), in the past I have said (effectively) that standard probability theory cannot get into gear before and until there are defined hypotheses; one cannot speak meaningfully of the probability of a hypothesis {H|not-H} unless and until one has a hypothesis such as H in hand a/k/a in mind.

By surfing on the web I have found another phrase that describes the situation in which the investigator is engaged in hypothesis formation rather than hypothesis assessment:

sample space ignorance

See Michael James Smithson, Human Judgment and Imprecise Probabilities at SIPTA, Documentation on Imprecise Probability

In probability theory parlance, the sample space is the canvas on which are painted the possibilities that are to be assessed.

The point of this canvas metaphor: in some forms of investigation the possibilities that ought to be in play have not yet been drawn on the canvas, on the sample space, and investigators sometimes must busy themselves with activities that may lead to the drawing of lines that form pictures that may be worth both further thought, deliberation, investigation, and assessment.

Piggish Probabilities

Law teachers sometimes complain that probability theory and mathematical probabilities are too precise and objective for the law. Well let them -- such law teachers, that is -- let such legal scholars consider the possibility of throwing roly poly pigs into the forensic stew!:

Pigs Akilter

and (last picture on page):

Another Random Pig!

N.B. If the pig lands on its snout the player gets ten (10) points, but if the pig lands on its back the player gets only five (5) points. So can we conclude that the probability of a pig on its back is exactly twice as great as the probability of a pig on its snout? (Would you bet your life on it?)

Boston Globe on Shanley

Irish Echo online (Feb. 15, 2005):

Shanley, who is 73, received favorable press coverage from the Boston Globe and other publications during the late 1970s, when he served as a celebrated street priest working with alienated youth.

Columnist in NYTimes Criticizes Roman Catholic Hierarchy for Reining in Paul R. Shanley

'"Michael Stephen'' (pseudonym), On Homosexual Priests, NYTimes, Section A, Page 23, Column 5, Editorial Desk (Late edition, Aug. 18, 1980):

''Hate the sin and tolerate the sinner'' best expresses the Roman Catholic Church's attitude toward homosexuals. Characteristically, ecclesiastical actions and thinking are not only behind the times but also against the tide. While the last several years have witnessed progress in accepting homosexuality in the arts, news media, psychiatry and publishing, and in accepting homosexuals' legal and public rights, the church has reversed the few hopeful signs that compassion might displace discrimination.

The 1975 Vatican ''Declaration on Sexual Ethics'' continued to classify homosexual behavior between individuals as sinful. (The church's position is that the condition of homosexuality is not sinful, that only homosexual acts are.) ... Humberto Cardinal Medeiros, the Archbishop of Boston, transferred to a quiet suburban parish the Rev. Paul R. Shanley, a priest who pioneered an effective ministry to homosexuals. ... These and other, unpublicized actions indicate the extreme homophobic attitudes harbored by the church's hierarchy, seminary faculty and many clergy despite the possibly sizeable number of homosexual clergymen, practicing and latent, in the church.

Did the Trial Judge Pull His Punches? Do You Believe in Unbelievable Stories? Are Show Trials Back?

Shanley was sentenced to 12-15 years imprisonment -- rather than to imprisonment for life.

Did the trial judge pull his punches -- because he did not feel certain enough that Shanley's recovered-memory accuser was telling the truth?

Will the Commonwealth of Massachusetts keep Shanley alive -- will it prevent other inmates from killing Shanley? (Do you care?)

Do you believe that someone can, for a decade or two, completely forget having been molested over a period of years and then, one day -- poof! -- recover that memory? Let's have a thoroughly unscientific poll below.

Shanley's accuser wept in the courtroom. Shanley did not weep in the courtroom.

I will have to go back into the archives to see what the Boston Globe thought (and wrote) in the 1970s and 1980s about Shanley and Shanley's advocacy of man-child love. I wonder what the Boston Globe would have done and said then had Cardinal Law barred Shanley from practicing his priestly duties. (I think Cardinal Law may have assumed his office only after Shanley began his activities as a kind of "street priest." Details, details! But I will have to look into this -- if I have time.)

Waves of fashion afflict us. It was not so long ago when some serious "reformers" advocated sexual liberty for minors without interference from "retrograde" parents. (Today such advocacy is dead but the sexual practices sometimes formerly advocated by some grownups have perhaps nevertheless taken firm root in some quarters.)

Forgive the touch of cynicism in these comments. Over the years the Boston Globe has had few good things to say about the American Catholic Church. (I am not a Roman Catholic.) But the Boston Globe had to tread carefully -- because its sexual politics were not anti-gay. So the Boston Globe's emphasis has been on predatory priests, rather than on predatory homosexual priests. But is it the case that sexual predation is limited to Catholic homosexual predation -- by Catholic clergy? Has Elmer Gantry vanished from the earth? Are some heterosexual sexual predators to be found in the ranks of the Protestant clergy -- even, possibly, among Unitarian-Universalists? Or are people such as Unitarians and Unitarian clergy incapable of sexual predation? Or just more clever in concealing it?

The Boston Globe is a liberal newspaper but it is, above all, a Protestant -- or non-Catholic -- newspaper. Do you think it is appropriate for such a newspaper (or any newspaper) to campaign for the abolition of celibacy in the Roman Catholic Church? Is that a matter that perhaps should be left to Catholics? (As it happens, most lay Catholics are apparently not in favor of the celibacy rule. But should the Boston Globe add fuel to this fire?)

I'm not sure I'm asking all of the right questions. And I'm not sure that all of the assumptions reflected in these comments are true. But I am sure of one thing: the trial of Shanley was much more than a trial of a single alleged sexual predator. The thoughts and sentiments flowing over and through the community in which Shanley was tried were complex and powerful. How will future generations look back on the trial of Shanley? Will they say that justice was at last done? Or will they wonder if the jurors came to believe a highly implausible story of forgotten sexual horrors and were moved to convict by powerful emotions that they were ill-equipped to understand and combat?

I have often thought and said that Hollywood's portraits of famous or notorious criminal trials in the first half of the twentieth century are implausible caricatures of how trials and juries work today. But the pictures that Hollywood painted of some trials in the past -- of, say, race trials in the South in the 1930s -- are perhaps not completely implausible accounts of the machinery of criminal justice in a "modern" and "liberal" community that is determined to stamp out the sexual evil and predation that it thinks clearly resides, on a large scale, in its midst. In such an environment can jurors be expected to use the common sense and sense of fairness that they normally display? I wonder.

P.S. The swarms of reporters that those old Hollywood films depicted as being in the courtroom no longer exist. Well, that's not quite right. Those swarms of reporters still exist. After multiplying they have moved outside -- immediately outside -- of the courtrooms in which "trials of the century" are taking place today.

Do we have show trials today in America?

Yes?

No?

I wonder:

In what sense can it be said that we in America do not have show trials today?

Shanley Convicted

The BBC just reported that ex-priest Shanley was convicted. My prediction was wrong.

Repressed Memory: A Bad Memory or a Recurring Nightmare?

There is reason to think that the ex-priest Shanley molested one or more children somewhere sometime.

There is also good reason to think that the claim of Shanley's principal accuser in the current criminal case that he, the accuser, recovered memories of abuse that had been lost to him for up to twenty years is bogus.

For some details about this case and trial see Joanna Weiss, Shanley Case Goes to the Jury, boston.com news (Feb. 4, 2005).

The avenging angels of the Commonwealth of Massachusetts seem to have learned little from the ill-begotten repressed memory prosecutions of the 1980s. Perhaps the jury in the Shanley case will have more common sense. (I'm betting that the jury will acquit.)

Massachusetts, you folks may recall, is the state that allowed a woman to sue her cousin for molestation that allegedly took place 47 years before. See Time and Justice in Massachusetts

Investigation, Bad Faith & Due Process

Illinois v. Fisher, 540 U.S. 544, 549, at 549 n. * (2004)(Stevens, J., concurring):

* Youngblood's focus on the subjective motivation of the police represents a break with our usual understanding that the presence or absence of constitutional error in suppression of evidence cases depends on the character of the evidence, not the character of the person who withholds it. United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Since Youngblood was decided, a number of state courts have held as a matter of state constitutional law that the loss or destruction of evidence critical to the defense does violate due process, even in the absence of bad faith. As the Connecticut Supreme Court has explained, "[f]airness dictates that when a person's liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant received due process of law." State v. Morales, 232 Conn. 707, 723, 657 A.2d 585, 593 (1995). See also State v. Ferguson, 2 S.W.3d 912, 916-917 (Tenn. 1999); State v. Osakalumi, 194 W. Va. 758, 765-767, 461 S.E.2d 504, 511-512 (1995); State v. Delisle, 162 Vt. 293, 309, 648 A.2d 632, 642 (1994); Ex parte Gingo, 605 So.2d 1237, 1241 (Ala. 1992); Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496, 497 (1991); State v. Matafeo, 71 Haw. 183, 186-187, 787 P.2d 671, 673 (1990); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); Thorne v. Department of Public Safety, 774 P.2d 1326, 1330, n. 9 (Alaska 1989).

Fairness, Reliability (Accuracy) & Due Process

Tennessee v. Ferguson, 2 S.W.3d 912, 914 n. 3 (Tenn. 1999):

"Fundamental fairness" is a concept which, by necessity, defies exact definition. As a general rule, however, a trial lacks fundamental fairness where there are errors which call into question the reliability of the outcome.

Rational Investigation; Fair Investigation; Due Process

You are an American trial lawyer or a police detective. You believe that Vila Victim is dead. You have five hypotheses -- H-1, H-2, H-3, H-4, and H-5 -- about how her death might have happened. Hypotheses H-3 and H-5, though quite different from another, involve wrongdoing by David Darling. Conjectures H-1, H-2, and H-4 do not involve any wrongdoing by David Darling. If you are a trial lawyer, David Darling is your client; and if you are instead a police detective, David Darling is on of your suspects in the possibly-criminal death of Victim. But whether you are a trial lawyer or whether you are a police detective, given the evidence known to you, you believe that the probabilities of conjectures H-1 through H-5 are roughly as follows:

P(H-1) = .1
P(H-2) = .05
P(H-3) = .4
P(H-4) = .2
P(H-5) = .05

Question 1. If you are a rational trial lawyer or police detective, which of your five conjectures should you investigate?

Question 1A. If you are a rational trial lawyer or detective, does it follow that it is irrational for you to investigate hypothesis H-2? On what assumptions?

Question 2. If David Darling was convicted of killing David Darling and police detectives investigated only hypothesis H-3, have Darling's due process rights been violated?

Cf. Arizona v. Youngblood, 488 U.S. 51 (1988).

Note: Larry Youngblood was released in the year 2000 -- after new technology -- a new type of DNA test -- convincingly demonstrated that Youngblood had not in fact committed the child molestation crimes for which he was convicted. See Barbara Whitaker, DNA Frees Inmate Years after Justices Rejected Plea, New York Times, August 11, 2000, Friday, Late Edition - Final, Section A; Page 12; Column 1; National Desk. Larry Youngblood spent roughly 17 years in prison for crimes that he very probably did not commit.

Gripping Story about Repressed Memory

See http://williamcalvin.com/2002/OrangeCtyRegister.htm. Be sure to read the last sentence.

Precision and Imprecision: Uncertainty, Probability & Proof

Aristotle, Nichomachean Ethics (trans. W.D. Ross, revised J. Urmson; Princeton U. Press, 1984) 1094b lines 24-27:

[I]t is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits: it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician demonstrative proofs.

Notes:

1. The quoted language may be a bit jarring [in postmodernist jargon: "orthogonal"; in German: "quer"] to participants in contemporary debates about the relationship between probability and (forensic) proof. But, of course, Aristotle's world is different from ours and "probability" in the quoted statement (above) does not mean what it means today.

2. Despite Aristotle's insistence that in certain realms rough or imprecise reasoning is the best that we can do, can we agree that Aristotle was trying to describe precisely how rough reasoning about certain matters works? [Can we speak precisely about imprecise reasoning?]

3. Are Zadeh and Pawlak modern-day Aristotelians?

A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit

Two Lawyers and a Judge Shape a Lawsuit

The Role of Decision Makers' Epistemic States (Inferences) & Speech Acts in the Formation of an Episode of a Legal Process such as Litigation

The Difficulty of Pretrial or Prelitigation Investigation and Planning

Question: Why is the investigation of and planning for a possible lawsuit and trial more difficult than planning and preparation in the somewhat-but-not-precisely comparable settings & situations mentioned (see below) by David B. Leake in Artificial Intelligence?

In real-world situations, it is seldom possible to generate a complete plan in advance and then execute it without changes. The state of the world may be imperfectly-known, the effects of actions may be uncertain, the world may change while the plan is being generated or executed, and the plan may require the coordination of multiple cooperating agents, or counterplanning to neutralize the interference of agents with opposing goals. Determining the state of the world and guiding action requires the ability to gather information about the world, though sensors such as sonar or cameras, and to interpret that information to draw conclusions (See MACHINE VISION). In addition, carrying out actions in a messy and changing world may require rapid responses to important events (e.g., for a robot-guided vehicle to correct a skid), or an ongoing process of rapidly selecting actions based on the current context (for example, when a basketball player must avoid an opponent). Such problems have led to research on reactive planning, as well as on how to integrate reactive methods with the deliberative methods providing long-term guidance (See ROBOTICS). The RoboCup Federation sponsors an annual series of competitions between robot soccer teams as a testbed for demonstrating new methods and extending the state of the art in robotics (www.robocup.org).

Wishes, Horses, and Group-to-Individual Inference

Take a gander at this -- if you wish: If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes

The 72-witness rule

James Franklin reports (at pp. 13-14 in his book The Science of Conjecture: Evidence and Probability before Pascal (2001)) that the False Decretals, a mish-mash of things compiled ca. 850 A.D., contain a passage asserting that a "bishop should not be condemned except with seventy-two witnesses." About this and some similar rules for defendants of lesser stature Franklin writes:

It is the world's first quantitative theory of probability. Which shows why being quantitative about probability is not necessarily a good thing.