Showing posts with label Memory. Show all posts
Showing posts with label Memory. Show all posts

Friday, January 24, 2014

THE RECOLLECTIONS OF THE ALMANAC TRIAL DEFENSE TEAM


Years ago a kidnapping/hostage situation arose when a bank robbery went wrong. An armed confrontation outside the bank led to a high speed chase, which ended when an officer used his patrol vehicle to knock the kidnapper’s car off the road. When the kidnap vehicle came to rest, officers scrambled to the wrecked car and subdued the kidnapper before he could harm his hostage. It was an event which would cause the adrenalin to flow. I happened to be in the radio control room at the time the kidnapping occurred and got to listen to the police radio transmissions from the beginning of the chase until the arrest. I must confess that my heart was pounding by the time the chase was over.

Despite video surveillance footage from the bank and the testimony of the victim and a dozen or more officers, the defendant entered a plea of not guilty and went to trial. Being a young, inexperienced rookie, I did not try the case, but I did get to sit in on it. As the prosecutor prepared for the trial, he spoke to four or five officers, each of whom steadfastly maintained that, alone and unaided, he took the kidnapper into custody. This presented a problem for the presentation of the evidence because most jurors realize that five officers could not each single-handedly arrest one man. As I recall, the prosecutor solved his problem by getting the officers together, explaining the problem to them, and telling them he was going to leave the room and let them figure which one of them actually made the arrest. At the end of their private conference none of them were happy but they had all agreed on one officer as the person who made the arrest. Problem solved.

This is a common problem with memory. We are each the hero of our own life story, and we tend to remember ourselves as being more important to a particular event than we actually were. I ran into this problem researching the Almanac Trial. Lincoln is usually remembered as trying the case alone and unaided. That is how the earliest published version of the trial told the story, and that is how most histories remember the trial. Actually, he was not alone in the trial of the case. Armstrong had three lawyers defending him. Other than allowing his campaign biographies to say that he was sole counsel, Lincoln never really talked or wrote about the trial. His co-counsel did. William Walker carried on an extensive correspondence with various people about the trial. In his recollection, he acted as lead counsel and Lincoln simply assisted him. According to Walker, Lincoln merely took notes, made suggestions, and made the final argument. Most of the others who attended the trial remember Lincoln doing much more than Walker seemed willing to admit. At least Walker was willing to admit that Lincoln was involved in the defense of the case. He never mentioned Armstrong’s third lawyer, Caleb Dilworth. Dilworth wrote less about the trial than Walker, and he was willing to give Lincoln more credit. If, however, his correspondence were our only evidence of the trial, the only thing that we would know about Walker’s involvement would come from a remark at the end of Dilworth’s letter that “I believe also William Walker of Havana was in the defense.”

When I was researching the original sources for the trial, the first papers I read were William Walker’s letters. I came away from my reading of those letters thinking that Lincoln did almost nothing in defense of Armstrong. Further reading of the letters and reminiscences of others at the trial changed my mind, and I now believe that he was the de facto leader of the defense team.

The problem I just described is but one of the man problems that researchers and investigators confront when dealing with the reminiscences of participants in an event. It is something that we must be careful to guard against.

Wednesday, September 11, 2013

INVESTIGATING MOONLIGHT MURDERS REVISITED

I recently posted a description of a long-ago murder case where we had an issue with moonlight and almanacs. My adversary in that trial and I remembered the incident very differently. For a full account of our differing recollections, go to my August 28, 2013 post. In that post I gave the account of both our recollections and said I would go back, read the trial transcript, and post a report on who was right. I have now done so. He was right.

The witness had testified on direct examination that she walked out on a dock and threw the murder weapon into the lake. On cross examination my adversary asked how she could see to walk out onto the dock without falling in the water herself. She said she could see by the light of a lamppost in the distance. There was no lamppost on the lake. I went to the almanac and discovered that there was a full moon that night, and it would have been high in the sky when she was at the lake.

Thus, my almanac trial was the reverse of Lincoln's Almanac Trial. Another difference: in the Almanac Trial, the position of the moon was of central importance. In my almanac trial it was a minor issue. What was important about my witness's testimony wasn't whether there was a lamppost where she said it was. What was important was whether the murder weapon was where she said it was. Divers found it exactly where she said she threw it.

Our varying recollections about the witness's testimony are instructive on questions of memory, reminiscence, and the validity of testimony. Both my friend and I remembered the gist of the incident--disposal of a gun on a dock during the nighttime & questions about the light available at the time. What we disagreed about were the details, and in this instance the details were insignificant to the point of the witness's testimony. What was significant about the testimony was whether the gun was where she said it was, not how she could see to put it there.

Our differing recollections of the incident did not mean that either one of us were lying. Nor did they mean that the incident didn't happen. I think this tells us that we need to be very careful about evaluating the testimony of eyewitnesses, but that we should not reject the testimony out of hand simply because there is conflict in the testimony. I think the questions when dealing with conflicts in testimony are: (1) What is the important part of the testimony? (2) Do the conflicts in testimony go to the important content of the testimony, or do they go to less material matters? The less material the conflict, the less reason we have to discount the testimony.

I had this problem many times as a prosecutor. My witnesses agreed about the important details of an incident, but they were in "hopeless" conflict about the minor details. I've seen a lot of guilty parties go free because a defense attorney was able to transform minor conflicts into reasonable doubt. I took advantage of this tactic many times when I was a defense attorney, and I had it used against me many times after I became a prosecutor.

I often found myself sorely tempted to make a specific argument to the jury in defense of these witness conflicts, but I never had the nerve. I was almost certain that if I made the argument I would draw a vociferous objection from the defense attorney, and that if the judge did not declare a mistrial, the appellate court would overturn the conviction. I therefore never made the argument, but I still like it because it fully exemplifies the point I'm trying to make. Since I have no defense attorney to object and no judge to declare a mistrial, I am going to make the argument now:

Conflict in testimony does not mean that anyone is lying, and it certainly doesn't mean that what they say happened didn't happen. For instance: Matthew says the superscription on Jesus' cross read "This is Jesus the King of the Jews." (27:37, KJV).  Mark says that it read "The King of the Jews." (15:26, KJV). Luke's version is "This is the King of the Jews." (23:28, KJV). John says the superscription read "Jesus of Nazareth, the King of the Jews." (19:19, KJV). Despite the fact that we have minor conflicts in the testimony about what the superscription said, there is no reasonable doubt about the main point of their testimony--Jesus was crucified.

It is best that I never made such an argument during a trial. When attempting legitimate persuasion, you do not want to use arguments which are so emotionally charged that they will sway your audience to accept your argument for emotional rather than logical reasons. Of course, in modern culture we are daily bombarded by arguments designed to sway our decisions by emotion rather than logic.

Any time I read a news article or hear a politician speak, I try to analyze what they are saying by stripping out the emotional appeal and seeing if I can find any logic in the argument. Sadly, I usually find very little sound reasoning at the core of most arguments. And this applies to all arguers on all sides of any issue, whether they are Democrat or Republican, conservative or liberal.  It's disheartening that we cannot cut through the demagoguery and decide issues on the basis of logical analysis.