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Monthly Archives: December 2017


Certain hard truths are undeniable.  First, sexual molesters should “burn in hell.”   Second, defense lawyers must defend to the best of their ability.  Third, some allegations of abuse are shaky – particularly those involving by troubled or vindictive teens or situations where someone is manipulating children.

So the defender has a daunting job.   A suspect has been accused of violating/abusing a child.   Hearts go out to the child, whose trauma may be as crippling as the deed itself.

There are a lot of good materials available to assist defense counsel.   Among the more useful pieces of advice:

  • Given social media, check what if anything appears on Facebook, the Internet, or elsewhere on social media concerning this incident and/or the lifestyle of the victim.
  • Assess the complaining party by using PTSD checklists; delve into the degree to which the individual has been socially, mentally, physically, psychologically, and spiritually affected.
  • Employ the fact that individuals do not always remember accurately.

This last bullet is inspired by Peter Robinson’s excellent detective story, When The Music’s Over.   The victim is a sensitive, perceptive adult woman who tries to “get it right” but recognizes that memory might play  tricks on her.

Brainstorming a bit with author Robinson’s well-honed words, consider the following, either as fodder for cross-examination or for opening/closing statement:

  • Have you written down what happened, perhaps to help you recall? What is your experience with how accurate your memory is?  You can only imagine yourself from where you are now;  agreed?   That doesn’t mean you don’t remember;  it just means you’re looking back from a great distance, as if you were staring through the wrong end of a telescope, right?  You might think you see details, even recall smells and textures.   But they may not necessarily match the past exactly.


  • Don’t minds go off on tangents?   Do you agree that our recollections can be hopelessly mixed up?   Won’t you agree that memory is not necessarily accurate even though it is permanently in our head?   Isn’t it true that we must be careful before we take our memories as God’s truth?


  • Memories are funny things.   Sometimes we can remember specific days – what we were wearing, whether the music was too loud.   But a lot of times, we  talk to somebody else who has a completely different recollection.   And we have to admit our recall is perhaps inaccurate.


  • A lot of these things happened. Maybe we are remembering  them wrong.

In our memories, we often alter what we originally saw.   It’s as if our memory and imagination are in competition.  Perception fights with facts.  History goes up against fiction.


  • One thing gets easily transformed into the other — you cannot depend on memory to provide the kind of evidence to convict somebody beyond rational doubt.


  • Likely this situation was scary for you. Would you agree that our imaginations often run a little while when we are afraid?


  • Are you open to the fact that maybe you don’t remember all the details with total clarity? Maybe what you recall is only speculation.  Maybe your imagination is working overtime – after all, what happened must be a blur.   Sure, you are telling your “truth” the best way you can.    But won’t you  agree – that doesn’t mean you’ve got it right…


  • It’s odd how memory works. You think you are remembering details. But when you try to recall months or years later, things have shifted in your memory.  Maybe it didn’t happen the way you remembered it.     Maybe you forgot some things.  Maybe you added stuff.  Surely you cannot swear to every little detail….


As time passes, here are some interesting statistics from a century ago –1917:

 ·         The average life expectancy for men was 47 years.

·         Fuel for cars was sold in drug stores only.

·         Only 14 percent of homes had a bathtub.

·         Only 8 percent of homes had a telephone.

·         The maximum speed limit in most cities was 10 mph.

·         The tallest structure in the world was the Eiffel Tower.

·         About 47% of the population made between $1000 and $2000 per  year.   The average US wage in 1910 was 22 cents per hour.

·         The average US worker made between $200 and $400 per year.

·         A competent accountant could expect to earn $2000 per year.

·         A veterinarian earned between $1,500 and $4,000 per year; a mechanical engineer got about $5,000 per year. 

·         More than 95 percent of all births took place at home.

·         Ninety percent of all doctors attended medical schools but did not have a college education 

·         Sugar cost four cents a pound.

·         Eggs were fourteen cents a dozen.

·         Coffee was fifteen cents a pound.

·         Most women only washed their hair once a month, and, used Borax or egg yolks for shampoo. 

·         Canada passed a law that prohibited poor people from entering their country for any reason. 

·         The five leading causes of death were:

o   Pneumonia and influenza

o   Tuberculosis

o   Diarrhea.

o   Heart disease

o   Stroke

·         The American flag had 45 stars.

·         The population of Las Vegas  was 30.

·         Crossword puzzles, canned beer, and iced tea hadn’t been invented yet.

·         There was neither a Mother’s Day nor a Father’s Day.

·         Two out of every 10 US adults couldn’t read or write.

·         Only 6 percent of  Americans had graduated from high school.

·         Marijuana, heroin, and morphine were all available over the counter at local corner drugstores.  

·         Eighteen percent of households had at least one full-time servant or domestic help.

·         There were about 230 reported murders in the country



 ORIGINALISM.  It’s interesting that the proponent of legal originalism, Supreme Court Justice Scalia, a Roman Catholic, so strongly favored “original intent.” Respectfully, his church saw the expansion of doctrine well beyond early Christianity –e.g., the Papacy, or unfolding of church doctrine on everything from celibacy to the Trinity to just war.   Given evolving church doctrine, why didn’t Justice Scalia embrace what was arguably a similar unfolding of Constitutional interpretation?

FOREIGN AID:   Many citizens believe this country overspends on foreign aid.   Surveys appear to show that many estimate the US spends upwards of 20% of the Federal budget for foreign aid.   However, if columnist Michael Gerson is the right, foreign aid – including international development and global health – represents less than 1% of the Federal budget.   He argues that such assistance has usefully combated disease and destabilization, saving more than 1 million lives, mainly young children.

IMPEACHMENT?   Author Cass Sunstine has researched the where/when of impeachment in America.  Bottom line: impeachment has been traditionally a partisan affair.  Mr. Sunstine offers various definitions and rationale for impeachment.

SURVEILLANCE: Jennifer Granick has written an interesting book about American spies.  Today, she comments, many Americans probably approve current rules and policies – “we have nothing to hide.”  However, she warns of dangers to individual rights if targeting supports the political objectives of a given administration.   The dangers of abuse are manifest, she says, since approximately one in four Americans has some form of a criminal record.   It boils down to the old question – how to balance democracy, the rule of law, and civil liberties.

FLAWED TRIALS.  The June 2017 decision of the US Supreme Court in Weaver v. Massachusetts alarms some civil libertarians.  The Court seemingly made it more difficult for defendants to gain relief from convictions after flawed trials.  To persevere, the complaining party must prove prejudice.   That can occur in two ways: [1] by showing that, absent the error, there was reasonable probability of a different outcome; or [2] demonstrating that counsel’s error rendered the trial fundamentally unfair.  Critics deplore the Weaver decision as unfairly tweaking the concept of “structural error.”   [That is an error violating Constitutional guarantees that define a fair criminal trial].  Such structural errors are so dangerous that they defy harmless error analysis and historically trigger reversal.  However, Weaver seems to require the offended party to object to that error at trial.   The Catch-22:   Prejudice stemming from this type of error is nearly impossible to prove: How can anyone show – well after the fact – that violation of a basic right affected the outcome?

HAIR SAMPLES: The NACDL CHAMPION magazine discusses the zigzag history of hair sample evidence.   For decades, FBI analysts claimed they could tell whether certain hairs came from a given person.  However, the National Academy of Science has stated that there’s no scientifically accepted formula about the frequency with which particular characteristics of hair are distributed in the population.    Between 2009 and 2013, DNA testing exonerated three men serving lengthy prison sentence whose convictions rested, at least in part, on microscopic hair analysis.

MARIN PROTOCOL:  Interestingly, few accusers seem to take a lie detector test prior to going public, accusing prominent individuals of sexual misconduct.   Of course, it’s wise to keep such results private unless and until they appear to confirm the accuser’s story.   And certainly, the reliability of polygraphs is an open question.   However, lie detector tests may gain increased dependability from something called the Marin Protocol:   If several individuals take a lie detector test and reach the same result, there’s a cumulative effect of increased reliability.

BEETHOVEN’S BIRTHDAY.    December 15 is celebrated as the birthday of Beethoven, the famous composer.  Right to life advocates claim that – had prenatal data been available centuries ago – he would have been aborted for significant birth defects.