Jersey City-New York City Renaissance

 

Liberty Park Walkway, May 6, 2007

 

Lay Judges and Common Sense to Arrive in Japan in 2009

Kyodo News, Lay judges to be advised to use "common sense", in Japan Times Online (May 6, 2007):

The presiding professional judge in the incoming citizen judge system will tell the lay participants to use their "common sense" in deciding criminal cases, according to draft models of such instructions.

The models map out what presiding judges are expected to tell the lay judges, who will be randomly chosen from the general public, before they begin examining criminal cases under the system taking effect in 2009.

Among the phrases recommended are "Make a judgment in accordance with your common sense solely on the basis of evidence presented to the court," ... "Your opinion has the same weight as that of a (professional) judge," and "You are allowed to talk to others about (general) impressions you formed by serving (as a lay judge)."

...

The top court is expected to lay out some basic legal concepts, such as "who shoulders the burden of proof" and "evidence-based examinations," while allowing individual courts to decide what precisely to tell lay judges.Under the new trial system, six eligible voters selected as lay judges will hear murder and other serious criminal cases with three professional judges at the first court of instance, working with them in reaching a verdict, and in the case of a guilty ruling what kind of sentence to hand down.

Under the draft models, lay judges will be briefed on some ground rules at the beginning of a trial, such as how the trial will proceed and what they should base their judgments on.

Specifically, they will be asked to give a guilty verdict if they have concluded that prosecutors' evidence is correct and give a not-guilty verdict if prosecutors cannot prove a defendant's guilt beyond reasonable doubt.

They will be advised to exercise their common sense and to express their opinions, with an understanding that their opinions weigh as much as those of the professional judges.

The lay judges will be warned not to divulge details of the discussions among judges, so they can "exchange candid opinions" and "protect their own safety," according to the models.

...

The three professional judges and the six lay judges will make decisions by majority. However, no guilty sentence will be handed down if all three professional judges find the accused innocent.

Kudos to William Twining

Congratulations to William Twining, honorary American and Floridian (Miami!), and now Foreign Honorary Member of the American Academy of Arts and Sciences.

I suppose the jurisprudes will try to claim him. But they cannot; such is streng verboten. Twining belongs to Evidence -- and Evidence belongs to him.

Originalist History & Dead Horses

"The rumors of the death of my horse are greatly exaggerated. My horse is not-history!" Peter Tillers, April 21, 2007.

Notes:

This statement is a comment on the proper role of history in the interpretation of the Confrontation Clause and, by extension, on the debate between Thomas Y. Davies and Robert Kry (go to current issue, Brooklyn Law Review to access Robert Kry, Confrontation Under the Marian Statutes: A Response to Professor Davies (PDF), 72 Brooklyn Law Review (No. 2, 2007) and Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule": A Reply to Mr. Kry (PDF), id. ).

I maintain:

1. Davies won his debate with Kry;

2. It is probable that the Court will eventually acknowledge that Davies got it right and that Scalia's originalist account of the Confrontation Right does not hold water; but

3. If moment no. 2 dawns, it does not follow that it is more probable than not that the Court will repudiate or substantially modify its holding in Crawford.

N.B. I am indebted to David Kaye for pointing out the following important discussion of dead horses: Riding A Dead Horse

What Does This Have To Do with Evidence?

Nothing, really. But read Adam Gopnik's hilarious review (in the New Yorker) of Zachary Leader’s biography of Kingsley Amis.

NBC's Egregious Mistake: Publishing the Video by the Virginia Tech Killer

This is far worse than Don Imus: it appears that NBC published the Virginia Tech mass murderer's video.

Greed knows no bounds at NBC.

I hope the wrath of the nation will descend on NBC. If it doesn't, we have much reason to fear for our future. Perhaps now there will be contests among mass murderers for posthumous notoriety, and perhaps a secular version of the suicide bomber will multiply in our midst. (People will do almost anything to get on TV.) God help us.

Charity for Harvard

I wonder if deductible donations to Harvard University support activities such as the following event recently (e-mail message, April 5, 2007) publicized and sponsored by the Harvard Alumni Association:

Harvard in Asia by Corporate Private Jet

Accompanied by Barry Bloom, Dean of the Harvard School of Public Health.
March 20-April 11, 2008
$54,950 per person based on double occupancy (limited to 33 participants)

In a wide-sweeping, 23-day expedition aboard a specially-configured private jet, you'll travel with Harvard faculty and enjoy personalized entree into the cultural wonders of Asia. At each stop-China, Vietnam, Nepal, Bhutan, India, Siberia, Mongolia, the Gobi Desert, South Korea, and Japan-local Harvard alumni, faculty, and distinguished guests will share insiders' views, highlighting the diplomatic feats, archaeological discoveries, and significant influence of Harvard's engagement with the region. From Shanghai to Kyoto and all points in between, enjoy luxurious accommodations, festive banquets featuring local delicacies, and traditional cultural performances.

Joining this exclusive group for the latter part of the tour will be Barry Bloom, Dean of the Harvard School of Public Health, and a widely-recognized authority on infectious diseases, vaccines, and international health.

Since this event is apparently sponsored by the Harvard Alumni Association (rather than Harvard University), I suppose that the answer to my question (see top of page) is that, no, technically speaking, your tax-deductible donations (if any) do not subsidize this $54,950 adventure. In any event, it's only fair, isn't it, to offer such travel opportunities to (selected) underpaid Harvard faculty members? Otherwise they wouldn't accept positions at Harvard, would they? (My checkbook is now at my side. I am reaching for my pen ....)

For more details see Asia By Corporate Private Jet

N.B. Oh, yes, I forgot: there is a "single supplement" of $8,000. So this trip is mite more expensive than I might have led you to believe. But there is this consolation: if you go on this junket ... er, expedition ..., you will undoubtedly be doing good by personally witnessing, e.g., infectious diseases.

Comments on Some Functions of Visualizing Evidence

In a draft introduction for a forthcoming special issue of the Oxford journal Law, Probability and Risk I said:

Many of the attacks on mathematical analysis of evidential inference were misdirected; many of them – probably the vast majority of them – rested on basic misunderstandings about the nature and possible uses of mathematics. (Some critics seemed to assume that numbers are only good for counting. Other observers seemed to assume that all mathematical expressions amount to recipes for solving problems.) But some of the attacks on mathematical argument about evidence and inference harbored, even if not always distinctly, intuitions that seem to have considerable substance.

One such intuition is that it makes little sense to ask people such as jurors to use a method of analysis or argument – such as Bayesianism – that is beyond their “common,” or “ordinary,” understanding.

Another important intuition is that the nuances and complexities of real-world evidence and inference are too great to be captured by any type of formal analysis.

Both of these intuitions involve assumptions about the cognitive capacities of human beings and the human brain. One reason I am interested in visualization of evidence and inference is that I suspect and hope that visualization of evidence and inference can make the logic of formal analytical methods such as Bayesianism more readily intelligible to so-called ordinary people – to people such as judges, jurors, law teachers, and law students, to people such as me.

I am interested in visualization for another reason: I also suspect that visualization may help to remedy or ameliorate certain cognitive limitations that afflict even very extraordinary people, even people with extensive training in logic and mathematics, for example.

These two conjectures of mine can be stated in the following deliberately-suggestive way: I suspect that visualization can make it possible for the extraordinary computational capacity of the ordinary brain to do a better job of taking advantage of whatever assistance explicit formal argument about evidence is capable of providing.

Whether some complexities and nuances of real-world evidence and inference in legal proceedings are beyond the limits of formal analysis is still an open question. But I have a theoretical prejudice that bears on the question of how complex inference should be managed and addressed: I suspect that the people who tend to believe that the solution to the problem of complexity is generally to wash out some details – I suspect that the people who think we need simple and simplifying heuristics are on the wrong track. I suspect that the devil is generally in the details and I suspect that washing out detail generally degrades rather than enhances inferential performance. If I am right about this, every effort should be made to develop tools that makes it possible for human decision makers to increase (rather than decrease) the number of evidential premises and evidential inferences that decision makers should try to consider when they address uncertain factual hypotheses.

Having said that attention to detail is important, I hasten to say that large amounts of detail do present a serious problem, particularly for the enterprise of developing and deploying formal argument about evidence and inference. I take it as gospel that assessment of the sort of evidence ordinarily found in real-world litigation (and in many other decision making situations) usually involves numerous evidential premises and numerous evidential inferences. An abundance of evidentiary and inferential detail presents a serious difficulty for the dream of explicit and comprehensive formal analysis of evidence in legal proceedings. As the number of items of evidence increases and as the number of pertinent possible inferences increases, the resources required to consider the inferences suggested or supported by a body of evidence increases exponentially. If a human actor who uses a formal method of analysis (such as Bayesianism) must allocate even a very small increment of time – one or two or three seconds, let us say – to each premise and to each step in a complex evidential argument, it becomes hard to imagine how a comprehensive explicit formal analysis of even a relatively small amount of evidence presented in a legal proceeding can ever be done by any real human being. Furthermore, the difficulty of just keeping in mind all of the necessary or important parts of an inferential argument (including its evidential premises) seems to increase enormously as the number of evidential premises and inferential links increases; the task is akin to trying to play n-dimensional chess blindfolded.

That’s the way I see things, and that’s why I hoped that a conference on “graphic and visual representations of evidence in legal settings” (http://tillers.net/conference.html) would shed light on how or whether visualization can contribute to the solution of two possible problems: (i) the possible problem of the unintelligibility of complex formal argument about evidence and inference; and (ii) the possible problem of the impracticability of explicit formal analysis of evidence and inference in legal proceedings.

&&&&&

The full introduction -- Visualizing Evidence in Legal Settings -- is available here

Chewing the Fat in Once-Modern Philosophy

"Are cans constitutionally iffy? Whenever, that is, we say that we can do something, or could do something, or could have done something, is there an if in the offing—suppressed, it may be, but due nevertheless to appear when we set out our sentence in full or when we give an explanation of its meaning?"

J.L. Austin, “Ifs and Cans,” Proceedings of the British Academy (1956), in Philosophical Papers, p. 205 (Oxford: 2nd ed., 1970)

Shooting the Breeze

"In Sartre's style of argument, German metaphysics met French sophistry in a kind of European Coal and Steel Community producing nothing but rhetorical gas."

Clive James,Jean-­Paul Sartre, The nothingness at the heart of his philosophy (March 29, 2007)

Massive Uncertainty

Today I saw a phrase I had not seen before: "massive uncertainty." I saw this today in a call for papers for the "International Conference on Scalable Uncertainty Management(SUM-2007)." The expression "massive uncertainty" is very probably not new; it was just unfamiliar to me. But I like the phrase -- because it hypothesizes, not that some events are very uncertain, but that some problems of uncertainty are massive -- because, I assume, some problems of uncertainty involve large amounts of data, very extended argument, or both. I suspect that the problems of factual uncertainty that one finds in some or many trials are, in this sense, "massive."

Massive uncertainty, of course, can lead to great uncertainty -- or, perhaps more often (when extended argument is so extended that it is untractable), to diffuse uncertainty judgments. But possibilities such as these do not do away with the distinctness of massive uncertainty. For example, massive amounts of data and very extended argument can, in principle, sometimes generate the conclusion that the probability of a very granular event is very high or very low.)

The conference web site: http://www.umiacs.umd.edu/conferences/sum2007/

The conference blurb states in part:

The Scalable Uncertainty Modeling conference aims to bring [together] all those interested in the management of large volumes of uncertainty together, irrespective of whether they [presumably, large volumes of uncertainty rather than people] are in databases or in AI.

Tim van Gelder on Conscious and Unconscious Thought

I belatedly discovered Tim van Gelder's wonderful post on a question that bears directly on the question of the relationship between "tacit inference and "explicit inference": Better thinking is not conscious, and not unconscious (Nov. 30, 2006)

Three New Papers on Quantification of the Reasonable Doubt Standard

Peter Tillers & Jonathan Gottfried, Case Comment United States v. Copeland, 369 F.Supp.2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim that Proof beyond a Reasonable Doubt Is Unquantifiable?, 5 Law, Probability and Risk 135 (2006).

James Franklin, Case comment—United States v. Copeland, 369 F. Supp. 2d 275 (E.D.N.Y. 2005): quantification of the ‘proof beyond reasonable doubt’ standard, 5 Law, Probability and Risk 159 (2006).

Judge Jack Weinstein & Ian Dewsbury, Comment on the meaning of ‘proof beyond a reasonable doubt’, 5 Law, Probability and Risk 167 (2006).

Links to abstracts of these papers are available at Current Contents

Sad Epilogue to the Sally Clark SIDS Case

Please see BBC News (March 16, 2007)

Judicial Regulation of Pretrial Investigation by Legal Counsel

Pretrial investigation has a tremendous impact on the outcome of trial outcomes. Or so every competent trial lawyer thinks. But the question of how pretrial investigation ought to be regulated is an excruciatingly difficult one. A very recent case illustrates both points. In Jones v. United States, -- A.2d --, 2007 WL 763220 (D.C.App., March 15, 2007) a man convicted of various crimes in connection with two rapes petitioned for a hearing on his claim that his Sixth Amendment right to effective assistance of counsel had been denied by the failure of his appointed counsel to investigate alibi evidence. The petition was denied. On appeal, the District of Columbia Court of Appeals held that this was error, even though some of the evidence supporting the alibi defense may have been conflicting. The appellate court wrote:

With respect to the first prong of Strickland, barely touched upon by the motions judge, we think that appellant met his burden of “alleg[ing] facts which, if demonstrated, would establish ineffective assistance of counsel.” Lane, supra, 737 A.2d at 548 (quoting Johnson v. United States, 385 A.2d 742, 744 (D.C.1978)). “We have recognized previously that the failure of trial counsel to investigate properly a case, ‘to interview exculpatory witnesses, and to present their testimony constitutes constitutional ineffectiveness.’ “ Lopez, supra, 801 A.2d at 46 (internal quotation and citation omitted). Here, if believed, the various affidavits attached to appellant's § 23-110 motion, which provide alibis for the times of both assaults, present powerful assertions of innocence. Therefore, the allegations made by appellant in his motion, if true, demonstrate “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, supra, 466 U.S. at 687.

Appellant stated, in his affidavit, that his trial counsel ignored his requests to interview his family, contact Mr. Williams, and obtain his employment records. Of course, as the government correctly notes, decisions concerning which witnesses to call at trial are often based on tactical considerations, and therefore, generally remain within the discretion of the defense attorney. See Lopez v. United States, 863 A.2d 852, 861-62 (D.C.2004) (“[T]he decision to call witnesses is a judgment left almost exclusively to counsel” (citation omitted)); Bell v. United States, 260 A.2d 690, 691 (D.C.1970) (“The decision to call or not to call witnesses on behalf of a defendant is part of the strategy utilized by counsel in the preparation of the defense. It is a question of judgment, and this court will not engage in a subjective determination of the wisdom of counsel's strategy.” (internal footnote omitted)).

Here, however, there is nothing in the record indicating that counsel's failure to call the alibi witnesses was a sound tactical decision, or, for that matter, that counsel even knew of the existence of the witnesses. The government did not produce any evidence explaining trial counsel's decisions or refuting appellant's claim that counsel ignored his requests to interview Mr. Williams and appellant's family members. See Gillis v. United States, 586 A.2d 726, 729 (D.C.1991) (remanding because “[t]he record is devoid of any meaningful explanation as to why a potential defense was not pursued” and “[a]t a minimum, there was a serious question regarding the need for a hearing”).

Finally, the government argues that, due to the strength of its case at trial, appellant could not possibility satisfy the second prong of the Strickland test, even with his affidavits, by establishing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, 466 U.S. at 694. The government did not rely on the strength of its case in its presentation to the motions judge and, as a general rule, we do not consider arguments “not properly raised and preserved [in the trial court.]” Bradley v. United States, 881 A.2d 640, 646 n. 5 (D.C .2005) (quoting Miller v. Avirom, 127 U.S.App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)). In any event, we think that the government may overstate the strength of its case and underestimate the persuasive power of the affidavits if believed as alibis.

To be sure, LL and NN [two rape victims] each identified appellant, in and out of court, as the man who assaulted her. Each witness also testified at trial that she was certain that appellant was the assailant. However, “[t]he vagaries of eyewitness identification, and the potential for wrongful convictions or adjudications based upon such evidence, have long been recognized in the District of Columbia.” In re As. H., 851 A.2d 456, 459-60 (D.C.2004) (citing United States v. Telfaire, 152 U.S.App. D.C. 146, 149-51, 469 F.2d 552, 555-57 (1972) (per curiam); Crawley v. United States, 320 A.2d 309, 311-12 (D.C.1974)) “Even if the witness professes certainty, ‘it is well recognized that the most positive eyewitness is not necessarily the most reliable.’ “ Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (quoting Crawley, supra, 320 A.2d at 312).

Here, both the circumstances surrounding the identifications of appellant, and the descriptions given by the complainants of their assailant, may have given the jury some reason to pause. Although both complainants claim to have viewed their assailant in well-lit rooms, the testimony of each establishes that she was only able to view her assailant for a limited amount of time, during an extremely traumatic event. While NN, who testified that she was 5′4″, described her assailant as somewhere around 5′8′ and only slightly taller than she was, appellant testified that he was six feet tall. LL, moreover, described her assailant at trial as between 5′8′ and 5′10″, but informed the police that he was six feet tall. Furthermore, NN described her assailant to the police as darkly complected and clean shaven, but testified at trial that he had a “lighter brown complexion” and “a little hair right on his chin.” Finally, NN failed to identify appellant as her assailant at the first lineup she attended. Although she testified that she had recognized appellant, but did not identify him because she felt ill and afraid, the jury may have viewed that testimony with greater scepticism if it had also heard testimony that appellant was working when NN was assaulted. The serology evidence presented by the government at trial was of little consequence. As the trial was held in 1986, DNA evidence was apparently unavailable.FN46 The evidence here was based on crude science, and established only that appellant, along with a very large percentage of the population, could “not be excluded” as the attacker.

FN46. See supra note 19.

The presence of appellant's prints at NN's home unquestionably presents a serious problem for appellant. In Newman, supra, however, we held that appellant was entitled to a hearing on his § 23-110 motion, despite the presence of his wallet at the crime scene, in part, because appellant asserted in his motion that he had been at the crime scene earlier on the day of the crime. 705 A.2d at 262.

There, Newman and his co-defendant Samuels were convicted of various crimes related to an incident in which they allegedly burst into an apartment and robbed the occupants, shooting and killing one of them. Id. at 249-50. Among the physical evidence presented by the government was Newman's wallet, which was found at the crime scene. Id. at 250-51. Newman's photo identification was discovered inside the wallet. Id. at 250.

Following his conviction, Newman filed a § 23-110 motion in which he alleged that his trial counsel's failure to contact an alibi witness constituted ineffective assistance of counsel. Id. at 260. In the motion, Newman also asserted that “he had been [at the apartment where the crime occurred] earlier on the day of the crime and at that time had left his wallet there by accident.” Id. Newman attached two affidavits. Id. In his own affidavit, Newman claimed that although he had informed counsel of the witness's existence, counsel did not contact her. Id. In a second affidavit, the alibi witness stated “that Newman had been with her at her home-a significant distance from the murder scene-from approximately six or seven in the evening until about midnight on the day the crime occurred.” Id. We noted that “[b]ecause the murder took place at approximately 8:30 to 9 p.m., [the witness's] testimony-if believed-would have completely exonerated Newman.” Id.

We also observed that “[t]he motions judge denied the motion without a hearing and without calling for an answer from the government.” Id. (internal footnote omitted). The judge based his decision largely on the presence of Newman's wallet at the crime scene and the failure of the alibi witness to account for the wallet's presence. Id. at 260-61. According to the motions judge, “it is highly unlikely that [the witness] would leave out such important information in her affidavit.” Id. at 261. The judge further asserted that “because [the witness] could not explain away the government's ‘overwhelming evidence,’ Newman could not show prejudice from his attorney's failure to contact [the witness].” Id.

In reversing the trial judge's order denying Newman's § 23-110 motion without a hearing, we rejected the conclusion that “the government witnesses provided such overwhelming evidence of Newman's guilt that a hearing on [the alibi witness's] credibility was not necessary,” observing:

Three witnesses identified Newman as someone present at the scene of the crime, but two of these witnesses admitted they had smoked crack cocaine and drunk alcohol immediately before the robbery, and there was testimony that the third had done so as well. One of the witnesses, [an alleged accomplice], was severely impeached with evidence of her plea bargain, prior convictions, and previous inconsistent statements. The other two-the complaining witnesses-had failed to identify either defendant from a photographic array. And, only after a newspaper article about the murder had appeared did they identify Newman and Samuels as the assailants. If the jury had received the benefit of [the alibi witness's] testimony that Newman had been with her elsewhere at the time of the shooting, therefore, it might have resolved the conflicts between Newman's and the government's versions of events in Newman's favor.

18 Id. at 261-62.

Turning to the issue of Newman's wallet, we further concluded:

Contrary to the motions judge's ruling, ... the presence of Newman's wallet at the scene of the crime does not negate the exculpatory testimony of an alibi witness as a matter of law. Trial counsel told the jury in closing argument that “there's no evidence to show that [Newman] wasn't there earlier in the day,” and that “[t]he only other person that would have known that is [a] woman who hasn't testified.... Furthermore, we cannot know whether, if [the alibi witness] had testified, Newman himself would have taken the stand to present his explanation about the wallet.... While the jury might have found this proffered explanation-that Newman happened to come by the apartment on the very day of the murder and accidentally left his wallet there-too incredible to believe, it also could have found the combination of an alibi witness and the defendant's version of how the wallet got there believable. Without a hearing to assess the credibility of the witness, however, we cannot tell what a jury might have done.

Id. at 262 (internal citation omitted).

We further stated:

[W]e cannot agree with the motions judge that “it is highly unlikely that [the alibi witness] would leave out such important information [as to how Newman's wallet innocently came to be at the crime scene] in her affidavit.” While [the witness's] failure to mention the wallet might affect her credibility, it does not as a matter of law make her testimony incredible-even if only because there is no discernible reason why [the witness] could have been expected to know anything about Newman's wallet ... In any event, the jury might have believed [the witness] despite the presence of the wallet; without a hearing to assess her credibility in the context of the other evidence, we cannot tell. Therefore, because the record here is “barren of the evidentiary facts which would either confirm or refute [the] allegation” that Newman's attorney failed even to attempt to contact a potential alibi witness, Newman is entitled to a hearing on his § 23-110 motion.

Id.

The situation involving the presence of Newman's wallet at the crime scene in Newman is analogous to the situation involving the discovery of appellant's fingerprints and palm print at the home of NN. Unlike Newman, however, appellant offered an explanation for the presence of his prints at trial. Certainly, his explanation posits an unlikely coincidence, which the jury was under no obligation to credit. However, as in Newman, the testimony of an alibi witness here could have provided greater credibility to appellant's explanation. At the very least, the fingerprint evidence cannot be viewed as so conclusive that it itself destroys the credibility of the proffered alibi witness.

&&&

In short, we do not think that the evidence presented by the government, while undeniably strong, was so overwhelming that it conclusively established, without a hearing, that appellant was entitled to no relief, whatever the possible strength of the proffered testimony of the alibi witnesses might be on further assessment. Because appellant “allege[d] facts which, if demonstrated, would establish ineffective assistance of counsel,” Lane, supra, 737 A.2d at 548 (quoting Johnson, supra, 385 A.2d at 744), and because “[t]he exculpatory value of the evidence proffered by appellant turns at bottom on the credibility ... of the witnesses specifically identified in [his] § 23-110 motion,” Newman, supra, 705 A.2d at 261 (quoting Rice v. United States, 580 A.2d 119, 122-23 (D.C.1990)), we conclude that it was improper for the motions judge to summarily deny appellant's motion. In so doing, we emphasize, as we did in Newman, that “we do not address the [ultimate] merits of [appellant's] claim.” Id. at 262 (citing Gray, supra, 617 A.2d at 524).

For the foregoing reasons, we vacate the order denying the § 23-110 motion and remand the case to the trial court for further proceedings consistent with this opinion.

&&&&&&&&&&&

Judge Kramer concurred in the appellate court's order requiring a hearing, but he wrote separately:

As the majority notes, Strickland v. Washington, 466 U.S. 668 (1984), provides that to prevail on a claim of ineffective assistance of counsel, a defendant must show both that the performance of counsel was deficient and that he was prejudiced by that deficiency. To meet the test, a defendant must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” Id. at 687, and that the defendant suffered prejudice because “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Because of what I perceive to be the strength of the evidence in this case (and the deficiencies of the affidavits presented to Judge Dixon), I am persuaded that there is no realistic possibility that Mr. Jones was prejudiced by any of the asserted deficiencies of counsel.

D.C.Code § 23-110(c) provides a presumption that there will be a hearing on an ineffective assistance of counsel claim. It also provides, however, that such a hearing is not necessary if “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” In my judgment, the motion, files and records of this case “conclusively show” that the defendant committed the acts of which he was convicted and thus should be entitled to no relief. But the government did not rely on the strength of its evidence in its presentation to Judge Dixon, and, as Judge Steadman points out, as a general rule, we do not consider on appeal arguments that were not presented below. Nonetheless, because I view the strength of the evidence so differently from the majority, I concur and explain.

To explain my differing assessment, I provide my own rendition of the facts. Although the crimes against Mrs. N. came after those against Mrs. L., I begin with the offenses involving Mrs. N. since the evidence of these crimes, in my assessment, is sufficient to prove them not “merely” beyond a reasonable doubt, but practically to “a mathematical certainty”-a standard that involves a degree of evidence that goes beyond what is necessary to convict an accused . FN1

FN1. See Criminal Jury Instructions for the District of Columbia, No. 2.09 (4th ed. Rev.2005) (“The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainly.”)

&&&

In sum, contrary to the view implicit in the majority opinion, I conclude that the government's evidence of Jones's guilt was overwhelming. FN5 For the reasons detailed above, this evidence easily met, if not exceeded, the standard of beyond a reasonable doubt. The record, on the other hand, convincingly refutes the belated allegations in the affidavits that Jones now proffers in his motion for post-conviction relief. Thus, I might well have been satisfied that “under no circumstances could [Jones] establish facts warranting relief.” See Joseph v. United States, 878 A.2d 1204, 1209 (D.C.2005) (quoting Ramsey v. United States, 569 A.2d 142, 147 (D.C.1990)) (internal quotation marks omitted), and that the trial court was therefore justified in denying the § 23-110 motion without a hearing. However, the government's decision not to argue the strength of its evidence before the trial court prevented the trial judge from conducting its own assessment of whether the Ramsey test had been met. For this reason, despite my own view that the evidence conclusively establishes Jones' guilt, I cannot disagree with the majority's decision to remand for a hearing. Thus, I concur rather than dissent.

FN5. Guilt, of course, is rarely established with absolute certainty. It is worth noting, however, that there is no indication that Mr. Jones has sought to take advantage of the Innocence Protection Act, D.C.Code § 22-4133, which would hold out the possibility of scientific exoneration should his DNA not match the DNA on the swabs taken from the victims.

Common Sense and the Question of the Underlying Foundations of Thought and Consciousness

In legal theorizing about inference there is much talk about "generalizations" and, on inspection, these generalizations are often common sense generalizations. In Artificial Intelligence -- or, if you prefer, "computational intelligence" -- there has been much interest in and talk about common sense generalizations. I recently mentioned the pioneering work of John McCarthy, who is profoundly interested in, not only AI, but also commonsense principles about the world. He is not alone; Douglas Lenat is another example, if possibly a curious one. (He is reported to have said that "intelligence is 10 million [common sense?] rules.") Fuzzy probability and its offshoots are another example of AI theorizing that takes common sense principles very seriously.

Some neuroscience, by contrast, seems determined to do away with common sense and to ascertain, via neuroscience, what and how human beings really think. The work of the Churchlands and of Daniel Dennett strongly tends in this direction, as does perhaps the "neurolaw" that Jeffrey Rosen of the NYTimes recently described.

The question of whether what we think we think is what and how we actually think is, scientifically speaking, an unresolved question. While it seems to be true that human thought as we know it cannot take place without material entities such as the brain, the nervous system, and a functioning heart, it must not be too readily supposed that in time, as all is revealed, it will be revealed that common sense thinking is entirely epiphenomenal, entirely an elaborate artifice, as it were -- much less that it will necessarily be shown that human thought is, not only associated with and dependent on the existence of, say, physical or neural processes in the brain, but also that human thought is, in some fundamental sense, superfluous to such "[allegedly] determinative material ["neural"?] substrata "processes"?]." The reduction of human thought to the workings of neural pathways is not yet at hand -- this condition is not yet at hand in the sense that we do not yet know how to replace allegedly epiphenomenal human reasoning with the workings of neural pathways in the human brain or, more broadly, in the human body.

Is it possible that human thought will never be reducible to the workings of such pathways or to something analogous to (and perhaps "deeper" than) such pathways? The answer, I think, depends at present more on faith than on science -- more on what one believes, without proof, about the fundamental nature of things. I would offer just a word of caution to the new reductionists, those who aspire to reduce all thought to "material neural pathways" [perhaps an oxymoron]: The sense of this nonexpert in AI matters is that at present it can be said -- perhaps counter-intuitively in the eyes of some observers -- that some AI approaches that emphasize the reality and efficacy of arguably epiphenomenal ways of thinking about the world do, to some extent, allow the creation of artificial mechanisms that seem to have some capacity to deal with the workings of the world. I think here principally of the successes of soft computing in controlling matters such as the scheduling of Japanese trains and the focusing mechanisms in cameras. See the interesting Wikipedia article on fuzzy control systems. Perhaps it will turn out that common sense has vastly more "intelligence" than is sometimes attributed to it.

But we must not be too smug intellectually. Another important development in recent years, partly the result again of research in AI, is our increasing awareness of the extent to which human inference involves and requires what Helmholtz called "unconscious inference." As I see it, a new Aristotle will soon emerge. This new Aristotle will be a thinker who will suggest how these two visions of human information processing -- commonsense reasoning and tacit, or unconscious, inference -- combine in a way that does not annihilate the truth and reality of either of them, and that makes it possible for human beings to function in the world -- in a way that perhaps even makes it possible for human beings to reflect on their position in the world, i.e., to philosophize.

The Material Mind

Now that I have neuroscience on my mind ... :-)

One might call the idea that some people have the mechanical-engineering model of the mind -- or, more simply, the mechanical mind -- the idea of the mind as mechanical. But if the basis of thought is in material (and this proposition stands in some serious doubt -- since it is far from clear that the underlying substratum of everything is materium rather than, say, "information"), human thought is not embedded in metallic material.

If mind is to be material, the mind might better be called the biological mind.

And it's interesting, of course, that the biological mind is structured to produce thought, logic, etc.; that it has neurons, axons, etc. that are arranged this way and that way so that thought (and consciousness?) can emerge.

I have sometimes wondered -- this, it must be said, is pure speculation -- I have sometimes whether the Grand Orginator preferred to give man [there's that word again] neural pathways embedded in soft tissue -- rather than electric circuits embedded in, say, dense metal -- because (is it so?) neural pathways enmeshed in soft brain tissue are sloppier -- because (if the following is true) there is more signal loss, signal misdirection, signal corruption, etc., in neural paths enmeshed in soft tissue than in the circuits enmeshed in your average computer. (Let's put aside the phenomenon of signal degradation over, say, the internet or telephone lines.) Is the (presumed) sloppiness -- mushiness? -- of neural pathways -- could we say their fuzziness? -- the basis of both human creativity and human freedom?

Well, it's a thought. Does anyone have more substantive, scholarly, and scientific comments to offer about this idle thought? (This question is not meant to be a veiled invitation to Daniel Dennett or to Paul and Patricia Churchland -- but I would not be angered to see such eminences heap material scorn here on my speculative ruminations. They are free to say what they wish. :-) )

The Fashions of the Times: Neurolaw

The sort of scholarship that Jeffrey Rosen describes will give the study of law and neuroscience a bad name. See Jeffrey Rosen, The Brain on the Stand (March 11, 2007).

There seems to be something about the legal mind that sometimes just cannot resist facile practical conclusions -- and ill-considered theoretical ones -- produced by the sciences of man [yes, I know I'm retrograde -- but I use "man" in the generic sense and I think every reader understands that] and the mind.

Legal Scholarship: No. 8

In discussions of legal scholarship there is sometimes talk of

Law versus Theoryor

Legal Doctrine versus Theory

The disjunction between law and theory is spurious -- at least to the extent that the asserted disjunction is meant as an assertion that a legal scholar must choose between doctrine and theory. It is plain -- common sense suggests -- that a legal scholar can discuss both doctrine and theory.

It occurred to me just yesterday that even the admirable combination of theory and doctrine may be too narrow. Even better is

The Golden Triad

The Golden Triad consists of

Legal Doctrine, Theory & Technology

or, more simply,

Law, Theory & Technology

See The Dynamic Evidence Page

N.B. Ward Edwards once said to a friend of mine that it takes a lot of good theory to make a useful tool. Ward Edwards was a wise man.