Cottleston Pie

I almost spend too much time reading law blogs. The newcomers are

• Decision of the Day : summary of recent, interesting appellate decisions. Tends to be edited for corrections in some way frequently, so I tend to try and hold back and let new entries sit a while before I read them. And this is a Bob Loblaw Law Blog! If you're an Arrested Development fan (as I am), then you just laughed (you might have laughed anyway, because it's just funny). Now, please, don't go to the blog and comment, "Have you seen/do-you-watch/etc Arrested Development?" as many people have already done. Whoever writes the blog wishes to remain anonymous (there are many legitimate reasons one might) and doesn't respond.
• The University of Chicago Law School Faculty Blog : Interesting, law-tilted, commentary of things going on from the perspective of the authors.
• Blog detailing the interpretation and application of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") : I had no idea I would find this interesting, but it is! Oops! So, it's another regular read for the time being.

Fortunately, the New York Times has recently started charging for their columnist content. This has freed up a little more time to read all the law blogs I enjoy, much of which is high quality stuff.

Turns out hanging fuzzy dice and Mardi Gras beads from your rearview mirror is illegal in Minnesota.

169.71 Windshield.

Subdivision 1. Prohibitions generally. No person shall drive or operate any motor vehicle with a windshield cracked or discolored to an extent to limit or obstruct proper vision, or, except for law enforcement vehicles, with any objects suspended between the driver and the windshield, other than sun visors and rear vision mirrors, or with any sign, poster, or other nontransparent material upon the front windshield, sidewings, side or rear windows of such vehicle, other than a certificate or other paper required to be so displayed by law, or authorized by the state director of the Division of Emergency Management, or the commissioner of public safety.

Source: Minnesota Statutes 2004, 169.71

The Curmudgeonly Clerk writes about a Baltimore Sun story that describes how: "lawyers have attributed several recent surprising acquittals to what they call the CSI effect. They say evidence that is not physical or scientific often seems to have little impact on jurors--even eyewitness testimony from a priest." They are referring to the popular "CSI: Crime Scene Investigation" television program.

They might be giving the television show too much credence. It's not necessarily causal. The show could be a result of a new societal awareness that non-physical and non-scientific evidence is more dubious that previously thought. A March 2004 column in Scientific American discusses research that demonstrates vividly how weak eyewitness testimony can be. A prime-time Dateline episode focused on the same research. (The research isn't just focused on eyewitness reliability, but natural human inattentiveness to unexpected detail.)

I've seen other programs and read other articles about the unreliability of witness recall (e.g. what color shirt was your attacker wearing?) and police lineups.

In addition, DNA evidence is providing unsettling proof that our justice system can, has, and does convict the innocent, despite significant safeguards. The NYTimes has written about it many times, including this 2001 article (unfortunately, the content of that article is not freely available) and this 2003 editorial (content available). I'm sure I've also seen this covered in popular prime-time news magazine shows like Dateline, 20/20, and/or 60 minutes.

One last thought about those lawyers mentioned in the article: why should eyewitness testimony from a priest be any more or less reliable than that from anybody else? I realize that they are appealing to the popular wisdom that priests are good and honest people. The pedophile scandal aside (it only affects a very small number of priests), I'd suggest that given the nature of their occupation, which relies upon their being predisposed to acceptance of unquestionable positions based upon unverifiable faith, their occupation does not support that they would make a good eyewitness.

I'm only reacting to the reports that jurors are demanding more hard evidence in preference of softer evidence that was "good enough." I think that that's a good direction. The article also suggests that jurors are unrealistic in their expectations about what science can do. That's a matter of degree rather than direction and I am inclined to believe that that probably happens, sometimes exacerbated by entertainment shows such as CSI which are not realistic in many non-obvious ways.

I was disappointed by Eugene Volokh's WWII analog to suggest that the Supreme Court should deny that the Guantanamo detainees have any right to petition our Judicial branch for habeas corpus: "Litigation as a military tactic".

A couple points come immediately to mind:

1. http://nytimes.com/aponline/national/AP-Scotus-Detainees.html ( 2004-04-20): "The Bush administration calls the men ``enemy combatants,'' similar to traditional prisoners of war but outside the guarantees of the Geneva Convention."

   If this "war on terrorism" is to be comparable according to Eugene's example wherein we have detained tens or hundreds of thousands of Nazis and Japanese, then shouldn't the detainees should be treated as POWs under the dictates of the Convention?

2. Eugene's argument is that the Supreme Court should rule on this juristictional case with a view of the hypothetical situation where there are far more detainees than our justice system can handle. Several orders of magnitude more than the actual case in question. He is suggesting that if the privilige is given at all, then an enemy may stage a "denial-of-service" attack. I think the argument could be paraphrased, "it would be too much work to do realistically, so we must avoid the work completely, independent of the issue of justice." If we processed however many detainees there were a some slow non-stop rate, wouldn't that be better than throwing up our hands and pretending to have no responsibility where we feel we should but we cannot muster all the resources to take care of the problem as quickly as we might wish? This would somewhat akin to a "bandwidth-throttling" defense for this type of "denial-of-service" attack.

   Given the reports that some non-trivial number of detainees were delivered by bounty hunters, not captured in a conflict situation with our own troops, we can have a reasonable expectation that there might be some innocents. If we processed just 30 a year randomly, then in this case, an innocent would have a 50% chance of being released within ten years. That's a very long time, but a lot shorter than life in prison. It also gives hope that may prevent the madness of despair that can come upon someone held wrongly and without hope for release or even review for an indefinite period of time in solitary confinement.

On the entire question, I think that there are numerous reasons why the jurisdictional question should be decided in favor of the detainees in this case, but many of the Justices seem to have a good handle on it. This later article is better than the AP story above: Supreme Court Hears the Case of Guantánamo.

Update on 2004-04-21: Eugene followed up with a few more posts on the subject, addressing some of the comments that I made here.