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438. Resisting reality

Recently I completed a series of all-day training sessions for law enforcement in outlying areas of New Mexico, a state with more than its share of outlying areas.  My fellow-instructor was a retired officer, and it was interesting to hear the assembled officers, from a variety of forces, complain about prosecutors and their reluctance to take cases to court.

For the last 90 minutes of the day, when everyone was impatient and tired and hot and ready to go, I talked to them about preparing a case for the prosecution.  I'd begin by telling them that everything they've been saying about prosecutors, prosecutors say about them.  That would get a couple uneasy chuckles.  And then I'd try to explain the lack of communication.

The key point I wanted to get across is that when prosecutors use the term "evidence," they don't mean the same thing cops mean.  My PowerPoint would show three images of a horse-zebra cross - first the image from the web, then the same pictured fuzzed up with PhotoShop Elements.  The first, I'd say, was reality - what actually happened to the victim.  The second was what law enforcement learned about the crime, which is never everything.  Complete knowledge isn't humanly possible.

And then I'd show a third slide, fuzzed up even more, to the point that it was difficult even to be certain it depicted an equine of any type.  That, I'd say, is what judges allow jurors to learn about what law enforcement has learned about reality.  That's the distance from reality at which prosecutors are forced to work.

The single richest source of appellate reversals in New Mexico is reality.  When jurors get an excessively clear picture of what actually happened, the judges get nervous.  The grounds for reversal might be Rules 403 or 404, or the hearsay rules, or any of various constitutional provisions, modified on the spot as needed to justify reversal -- the details are of no interest to anyone but lawyers, and little enough interest to them.

The only thing that matters is that convictions are reversed if jurors are allowed to learn everything law enforcement has found out about a crime.  In New Mexico, that's pretty close to automatic, at least in cases against women and children.  Our district judges know it, and any district attorney interested in how conviction rates will play in the local papers will learn soon enough.  (Hey, you don't get to be #2 by accident!)

To illustrate the point, I used a notorious example.  After Shawn Jacobs, a sadistic killer of a teenaged girl, was arrested for the crime, he filled out magazine subscription cards from prison and sent a gift subscription, in the murdered girl's name, to her mother.  He also subscribed to various magazines in the girl's name and sent them to the mother. That way she would be made to think of Jacobs taunting her from prison every time an unwanted magazine -- or an invoice -- showed up in her mailbox.

Jacobs' defense attorney stipulated that it was his handwriting on all the subscription cards.  There was no doubt that he was responsible, and that he was motivated by a particularly vile combination of sadism and narcissism.

The New Mexico Supreme Court reversed his death penalty because the jury had been allowed to learn that indisputably true fact about Jacobs and what went through his mind.  (Paragraphs 66-69.)  The objectionable point was that the evidence was not only true but, the justices concluded, likely to have been considered important by the jurors.

The Rules of Evidence and the ever-morphing exclusionary rules exist to prevent jurors from becoming fully-informed about the cases they're called upon to decide.  That's not a side effect.  It's the point.

Now, in many ways it's not a perfect illustration, because the Supreme Court was going to reverse the death sentence no matter what.  The actual reason for the reversal was coincidental, and if it hadn't been the magazine subscriptions it would have been something else. 

The justices were deciding the case strictly on emotion, specifically their feelings about capital punishment.  I would have respected them more if they'd come out and admitted that they just refused to permit a prisoner to be executed, regardless of the laws enacted through democratic means, but the conventions of the profession being what they are, and the profession being so convention-bound, I understand why they felt constrained to express that meaning in code.

Nonetheless, the Jacobs case remains a vivid illustration of the broader point, and telling the story keeps the audience's attention even at the end of eight hours.

But at one training, in Española, one of the attendees raised her hand and said she had served on the Shawn Jacobs jury.  The magazine subscription information, she said, played no role in the decision to impose the death penalty.  "It didn't once come up in our deliberations."

Not only did the Supreme Court's opinion hold that a jury's decision should be based on ill-informed suppositions in preference to verifiable information uncovered by law enforcement, the opinion itself was an example of just such ill-informed supposition.  It was too perfect.

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