. Jury duty Called for jury duty at a time when had two scheduled talks. Talking to shrink friend. He said – I never serve. I have a perfect way of getting out of jury duty. When I am asked whether I can decide cases based on the evidence – I say, I havade had a long career in psychology

We spent last week on track 1. We’re on track 2. Where is creative legal thought and where does it come from?

What is Jerome Frank saying? S: Witnesses are fallible and judges are fallible witnesses of witnesses. For law to be a science, you have to be able to discover rules and apply those rules deductively in other circumstances. Felix Cohen said the problem with that view: rules never add up. Rules skeptic guy: it depends on the belief in a complete logical rule set. Frank has a different problem. He says – even if you can construct a complete logical rule set, you can’t ever know what the facts are.

Judges can’t be replaced by calculating machines. You can write a program for applying law to facts. Perhaps you could even have a program that predicts legal outcomes. But you still wouldn’t be able to predict outcomes of cases, because you wouldn’t be able to determine the facts. Why does he think this is not a problem for appellate judges? Appointing Jerome Frank to 2nd circuit was hugely controversial. He wrote about judging as an immature activity, said law was a neuroses. Now on the great appellate court of the US. Now, as a judge on upper courts. He says – there’s no such thing as fact finding. But I am a judge on upper courts. These judges get to make it up. Can restate it any way they want. They can also distinguish cases. When I was clerking, there was a bad Circuit decision on statute of frauds about carrots. But it stood. For about 60 days. Then a new case came up. They distinguished it as a potatoes case. And didn’t publish the opinion. That’s how they got away with it.

Facts: comes down to what people to say, and you know people aren’t honest. Nuances are important, but are lost in the transcript. Once facts are found, it is difficult to unfind them. People assume that unless like cases are treated in a like manner, there is no justice. Question – video can reduce this problem? But – need to determine whether a piece of tape represents all the relevant reality. Rodney King. Issue – if you had the 15 min before – would you change your mind? Another issue: whom you show the tape to will affect whether that tape is taken as the whole relevant reality? So, venue for the trial matters. Prosecution objects: South Central LA – that will be a prejudiced jury. Go to Ventura. Defense: Ventura country is where police live. Suggests Riverside. Judge: think about the traffic. Can’t go to Riverside. So trial goes to Ventura county. In Ventura, that jury doesn’t think the video is the whole story. What about DNA testing?

That one too. There’s a scam. DNA analysis only happens at the end of a long chain of possibilities for contamination. All of which is no better than the testimony about the activity. The Innocence Project factory down the street run by Barry Sheck. Attacks on all the state crime laboratories. Places that seem never to have done anything honest, since formed. Think of all that labwork that is nothing but lies. One person I went to law school with. Had many mishaps as a prosecutor for SDNY. One of them: coke bust. Gets lab report day before trial. It’s heroin. Did the gym bags get mixed? Even with all the technology – still relying on human testimony. Have even more propositions need testimony too. What level of certainty needed for facts for crime?

There are two classes of people on death row. Thousands of people there. 1. People with behavior with behavior we do not wish to recognize as human beings. Hundreds. 2. The bulk of people there were in the wrong place at the wrong time, have fired, and someone is dead. Our execution system is basically a subsidy to all night retailers. Want people to feel safe working late at night. In my time working on capital murder, seemed 2 people could have done it. Defendant, or the state’s star witness. First time looking at certs for death. In the first bag, there was someone who was arguably innocent. He’s in Florida. Someone robbed the restaurant where he worked. They fired a shotgun at supervisor. Shotgun found in backyard of state’s star witness. Witness said he did the crime with defendant. D is represented by public defender, with 55 other cases, and never tried a capital case. Prosecution puts 61 witnesses up for trial. PD interviews none of them. PD makes motion that he cannot handle case – workload. Conviction upheld by Florida SC. Key point: who made the deal with prosecutor. After that, the facts will fall into place. Only one person will die for the murder, and prosecutor has decided who it is. Evidence: we have social processes for instituting facts. We convince a fixed collection of people about those facts. Most of the guys I know in Robinson’s line of work – they do believe most of the time that a criminal trial is over when you pick the jury. Robinson doesn’t quite believe that. Friend – met on courthouse steps – said he lost today. Jury got picked. My feeling always was – take the first 12 in the box. You never do as much by shaping it as you do by shaping it – you annoy people. Since I don’t do criminal trial work, I still think that. Guys who do criminal work – take it very seriously. Evidence tends to run that way. If it’s true – jury matters so much. What do you do? . We go beyond Holmes. We’re not just predicting public force. We are active in engineering outcome. We can’t make the rules consistent, but we can shop around until we’ve figured out in focus groups what it will take to get that case perceived as unanswerable. SCOTUS: get together recent clerks and practice your case. This is the way in which wealth and power wins. Determine life and death. To get evidence, you have to get it.

Heavy trucks that run on highways, the wheels are not solid. Interlocking tongues. Goodyear invented multipart – K rim. Became clear it was unsafe. Problem occurs during inflation. Began doing harm to people who were inflating tires. National Highway Safety Authority – recommended recalling. Industries refused. Goodyear got sued a lot about this. Goodyear has 4 warehouses full of information about rims. If you sue, they make you move to compel disclosure one piece of paper at a time. Then, one the morning of the trial, they settle. And make you sign something that you won’t sue them again. So always litigating against first-timer. When I was a clerk, got one of these cases. Duchess County, happened. Solo practitioner representing. Goodyear – provides witnesses in cities around the country. Solo moves. My judge – says – you have to provide all discovery in SDNY. They go out in the hall and settle.

Facts? Who gives a damn about facts? Everyone knows what the facts are. If Frank is right, there’s a lot wrong. There’s a big problem. There is no perfect system. But the weaknesses here are exploitable unequally. That leads to systematic biases in results, which are invisible. Unless you’re enough a realist not to believe in the facts, unless you’re enough of a shrink to ignore the evidence.

To sum the first strand so far: Holmes: lawyers have overdepended upon some lements of the stack for understanding social process: logic, history. Underdepended on modes of social science that are more sci: stats and econ. Cohen: true to a point: the real purpose of legal investigation is to understand social process by its conseqne. And understand social forces as change sof antecedent conseq. You need a system for knowing what ocnseq to absorb and which to leave behind. That is a theory of value, which weighs consequences. Frank: that would be easy if it were true. It’s not true. The uncertainty is really in the facts. That is hidden behind the certainty of the fact finder. My judge used to say – if we’re wrong about the law, court of appeals can correct. But we have no right to be wrong about facts. If Frank is right and we can’t do that – we have to ask – what are we doing? 2 things we have to do. Understand how that works it out.

Then go to Robinson.. Then John Brown. Next week it might be a good time to do some writing.