Nothing But The Facts

June 13, 2011
/ Author: Rick

One of my favorite bloggers, Houston DWI attorney Paul B. Kennedy, writes “What twisted webs we weave” over at The Defense Rests today.

At first, I thought it was going to be another Rakofsky post, because he started off with this:

In the end all you have is your name and your credibility. Once you’ve besmirched those two things, you have nothing left.

Paul’s post, while in a sense related, is much more interesting to me than the Rakofsky debacle.

Scott Greenfield is famous for noting that “on the Internet, nobody knows you’re a dog.” Brian Tannebaum’s approach, which is sometimes tedious and grating, has been to pepper Twitter repeatedly with rabid sarcasm. He prefers the phrase “snake oil salesmen.”

My characterization of Brian’s approach, by the way, should not be taken to mean that I in any way disagree with him. It’s just that I know he is an interesting lawyer with more experience and knowledge in his pinky than I probably have in my whole brain — which is one of the reasons I follow him — and I keep wishing he’d share some of that. I already know about and detest snake oil salesmen.

But I digress.

Paul’s post was not about Rakofsky. Instead, he wrote about a somewhat amusing story that recently broke concerning Tom McMaster, who successfully masqueraded online as a dog half-American, half-Syrian lesbian until he apparently killed her off, figuratively speaking, via a report that the secret police had discovered her secret hide-out and secretly arrested her.

Well, okay. Since he did it via the blog he created for “her” on the Internet, maybe it wasn’t all so secret.

What had been the secret, of course, is that the woman, known to her readers as Amina Arraf, was known to nobody else (because, of course, “she” didn’t really exist).

Paul says:

Journalists, academics, activists and others began following the saga of Amina Arraf. No one questioned whether she was a real person. No one questioned whether the events depicted in the blog even occurred. I mean, it’s the Internet — why wouldn’t it be true?

Why, indeed?

This makes me think of all the times we criminal defense attorneys are in court, trying to defend our clients, while everyone — prosecutors, judges, jurors — looks askance at us and our paltry defense. I mean, the police wrote reports about it — why wouldn’t it be true? They testified to it under oath — why wouldn’t it be true? There may be other witnesses: people who said they were present. And they might testify to certain things — why wouldn’t they be true?

The question I’d like to see more jurors ask is it’s not so much “why wouldn’t it be true?,” but “why would anyone do (or say) such a thing?” As we now know is true of the Amina Arraf story, a healthy dose of skepticism can have a very useful effect. In a criminal trial, it can ensure that innocent people don’t get convicted.

This is one of the reasons — if not the reason — we have jurors in the first place. If the only thing police officers and other witnesses brought to the courtroom were “the facts,” we wouldn’t be having a trial.

I like the fact that in Spanish, the word for “trial” is “prueba.” When I’m talking to one of my Spanish-speaking-only clients, it’s one of my favorite words to say. According to my New World English-Spanish Dictionary (El Diccionario New World Inglés-Español Español-Inglés), the word means:

1, proof. 2, trial; test. 3, ordeal. 4, fitting; trying on. 5, sample; sampling.

If something is de prueba, it is “firm; solid; durable.” But it takes la prueba to make that happen.

I like being able to say the word because prueba is related to the Spanish word probar and every time I hear either of these words, I think about how close that sounds to the English word “probe.”

This is what a trial is for: to probe.

What is it that we’re probing for? We’re probing to find out in a sense, the truth. But we’re not trying so much to find out “what really happened.” No. That job, allegedly, is the job of the police and of the prosecution. Supposedly — though we know this does not always happen — the police will do a thorough investigation in an attempt to find out what really happened. And the prosecutor won’t bring a case until he has a pretty good idea of what really happened.

The trial — la prueba — is to probe the truth of their story about what they say “really happened” to determine if there is reason to believe, beyond a reasonable doubt, that they are correct.

This is why a defendant doesn’t have “to tell his (or her) story.” This is why a defendant doesn’t have to prove that he (or she) did not do that of which they are accused. This is why, sometimes — perhaps many times — the defense does not put on any evidence “to refute” the prosecution’s story. It’s why defendants are acquitted — or “found not guilty”; they aren’t “found innocent.” It may be that they are actually innocent, but that’s not what a trial is about. A trial is about the prosecution — which allegedly has done an investigation sufficient, they hope, to collect evidence which would prove to others (the jurors) beyond a reasonable doubt that the crime was committed — a trial is about the prosecution actually convincing jurors beyond a reasonable doubt that their story is true.

As Paul’s post points out, the story of Amina Arraf began to fall apart — “the gig was soon up” — when someone finally started to do a little fact-checking.

That’s what a defense attorney is for: the defense attorney serves to assist the jurors as a kind of proxy fact-checker. The way our system works, jurors don’t typically ask questions. (They actually can ask questions, at least in California (People v. Cummings, 4 Cal.4th 1233, 1305-1306, 18 Cal.Rptr.2d 796, 850 P.2d 1 (1993)), although unless the attorneys aren’t doing their jobs, they normally would not need to do so. And if you happen to be a juror, or future juror, reading this — well, there’s a proper procedure for that, so don’t just go shouting out your question because you read here on my blog that you’re allowed to ask questions.) Instead, the defense attorney probes the testimony and other evidence offered by the prosecution.

That’s right: during a trial, the defense attorney works for the jury.

Too often, though, like readers of “Amina Arraf’s” blog, jurors accept what is said to them without paying enough attention to the probing of their best and only tool they have for testing the prosecution story. After all, the defense attorney will do anything, say anything, to win, right? He just wants to get his client off. The defense attorney’s job, some people think, is to put murderers and rapists back on the streets.

Like we really want murderers and rapists out there with us and our families.

I like this story of Amina Arraf because, in addition to what I’ve drawn out from it above, it helps me to see what jurors need to keep in mind while listening to the prosecution witnesses tell their stories and while — hopefully attentively — watching their proxy fact-checker probe those witnesses.

You see, the reason people were so readily taken in by Tom McMaster is because the story itself — as plausible as any told by a prosecutor in a criminal trial — gave them no reason to question it. We, as a society, aren’t used to the fact that important clues we usually use for evaluating someone’s story aren’t there “on the Internet.” And certain kinds of stories, presented in particular ways — well, as Paul put it, “why wouldn’t it be true?”

But the real question jurors need to ask is, as I said near the beginning of this post, a deeper and more probing question:

Why would anyone do (or say) such a thing?

Why would Officer So-and-So testify as he did? Is it because of something he actually saw and heard — is he testifying about something he really knows? Or about something he supposedly heard? Oftentimes, for example, police officers are put on the stand for one reason: one of the prosecution’s witnesses has “gone sideways” and the police officer’s job is to “fix it.” Or, similarly, a defense witness has said something which, if believed, hurts the prosecution’s case. Again, the officer’s job is to fix it.

The hope is that just because he’s a police officer, the jury will believe him, instead of the real witness — the person who was actually there and saw what they’re testifying about.

So the officer has very often — at least, when he’s “fixing” a bad prosecution case — has an ulterior motive for his testimony.

And don’t even get me started on snitches.

Like Tom McMaster, whose reaction to having been “outed” is that he only meant to do good, these witnesses, too, have their motivations. For the police, they have a stake in the prosecution story. After all, much of the time, they wrote it. And the snitches….

If you can’t see what’s in it for them, we really have a problem.

Am I saying that “cops always lie”? Am I suggesting jurors should never believe what cops and other prosecution witnesses have to say?

No, I’m not. What I’m suggesting is that you pay attention to your employee — the defense attorney — your proxy fact-checker.

Remember that witnesses, including police officers, may have motivations other than “to tell the truth, the whole truth.” And remember that witnesses don’t really come to you with “nothing but the facts.”

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