Monday, January 31, 2011

The Impending Execution of Roy Willard Blankenship

[Note: This post was written prior to the stay granted to Roy Willard Blankenship. His execution has been re-scheduled for some time between 23 and 30 June, 2011.]

Roy Willard Blankenship is scheduled to be executed by the people of Georgia on 9 Feb 2011 for the rape and murder of 78-year-old Sarah Mims Bowen. I find no credible evidence that Blankenship might be factually innocent of the crime.

For those of you convinced that we execute only guilty people, I suggest you consider the many cases of people wrongfully executed. Examples include (but are no means limited to) Johnny Frank Garrett, Frances Elaine Newton, and Cameron Todd Willingham.

For those of you opposed to the death penalty under any condition, I suggest you familiarize yourself with the details of some of the crimes for which people are condemned to die. For the details of the crime committed by Roy Willard Blankenship, I offer the following description taken from his appeal Blankenship v. Hall.
At around 4:15 p.m. on March 2, 1978, officers from the Savannah Police Department responded to a call at 404 West 44th Street. They were directed to the second-floor apartment of Sarah Mims Bowen. Several members of Bowen's family already had arrived, having been contacted by her downstairs neighbor. Inside the apartment, police found a blood-stained paper towel in the living room. In the bedroom, the body of 78-year-old Bowen lay dead and naked on her bed. She had bruises on her arms and hands, and her face was beaten and bloodied. A plastic bottle of hand lotion had been forced into her vagina.
There were footprints found on the porch outside Bowen's apartment. Police found similar prints inside the apartment. Outside the house, they traced the prints from the bannister supporting the porch southwest along the ground towards the street, in the general direction of the apartment of Roy Willard Blankenship.
Dr. Rodrick Guerry performed an autopsy. He determined Bowen had been severely beaten, suffering repeated blows to her face. Bowen had preexisting chronic pericarditis and arteriosclerosis, and the autopsist attributed Bowen's death to heart failure precipitated by a severe assault. The autopsy also revealed she had been vaginally raped. Semen was found in her vagina, which tests demonstrated came from a blood type-O individual. Both Blankenship and Bowen were type-O. In addition, Dr. Guerry stated the inside of Bowen's mouth and throat were red and bloodied, injuries consistent with oral rape. However, tests did not reveal the presence of semen. Scrapings beneath the nails on Bowen's right hand also tested positive for type-O. Based on the condition of the body, the coroner concluded Bowen had been raped while alive, was beaten, and suffered heart failure as a result.
A fingerprint lifted from glass broken in from the balcony and found inside the apartment matched Blankenship. On March 11, an arrest warrant for Blankenship was prepared, as well as search warrants for his apartment. Inside the apartment, police found shoes belonging to Blankenship whose tracks matched those found in and around Bowen's apartment.
Police arrested Blankenship and he waived his right to remain silent. Blankenship spoke with police and described his presence in Bowen's apartment in the early morning of March 2, 1978. His oral statement was transcribed, and he signed the transcription. In it, he confessed to the following:
I went up on the iron rail on the side of the porch and climbed over the banister. I stood up there for a few minutes thinking, what the hell, I really didn't know what to think. I had to be drunk. Stoned. And I kicked the window in and I waited. When I kicked the window in to see if anybody heard it, I could've got shot or something. I guess I should have. It would have been better. I went in through the window, I think. I scraped my arm on the window. I don't think it cut it. I went into the next room, I saw no one. Just the bedroom. I looked around there and the door was opened into the next room. I went up to the door and started to go through when I saw a mirror straight ahead in the next room where the lady was. I seen her reflection through the mirror sitting in a chair so I stood beside the door for awhile watching her pray or something. Moaning. I don't know. Then I grabbed her. I think her mouth so she did not scream. [sic] I covered her mouth and her nose and then she slid down in the chair. She fell on the floor and I fell on top of her. After I fell over on top of her I didn't have to hold her mouth or anything. She was not screaming or kicking or anything. So this blood was coming out of her head, I think, on the right side. I think. I pushed this little stool back and I picked her up and I carried her and laid her on the bed. All right. I put her on the bed. She had some pajamas on, I think. I took them off. It's crazy. When I put her on the bed and took her clothes off, I was drunk, I guess. I said I may as well go ahead and get some pleasure. That's when I had the relationship with her. As far as I know, I thought I was in the right hole. After that I got up and was afraid that I might have hurt her. I thought I'd better get out of there. I left as soon as I did that shit. I left. I went the same way I came. I was wearing the same shoes that the police confiscated from my house today. I watched her about 10 minutes. After I grabbed her she fell to the floor and I put her on the bed. Right after that I shot off or got my pleasure or whatever you want to call it. I put back on my clothes and left. It probably was not long. I was in the house maybe 45 minutes or an hour all together. I don't know why I did it. I was drunk. I know I had to be drunk. That time in the morning I had to be just coming back from the Orential [sic] Lounge. I came by myself. I had been at the bar with Joe and Alex. They left the bar about 1:30 or 2:00. I know I stayed until closing, 3:00. I walked from the bar to the house. The Orential [sic] Lounge on Abercorn Street. I shoot pool all the time. It takes me about five to seven minutes to get to my house walking. I never did make it home. I stopped at her house and went upstairs before I went home. I know the witnesses in the bar—waitresses, sorry. I know the waitresses in the bar. I don't dance. I just shoot pool and get high and get drunk. I was drinking that night. I was drinking burbon and coke. I don't remember anything about the plastic bottle.
In the footnotes, we find this insight regarding the confession.
Blakenship did not simply give a narrative account of the evening. His statement was a mixture of his narrative and responses to questions and comments from the interrogating officers. Only his statements were recorded, typed and signed as a confession.
During his trial, Blankenship testified that he did enter the apartment and assault the victim, but did not rape or murder her.
Blankenship testified in his own defense. During the time of his arrest, he worked at the Guerry Lumber Company. He said he was an alcoholic and also took Qualudes, a tranquilizer.
Blankenship knew Bowen; in fact, he had been inside her apartment prior to the night of her death, performing odd jobs such as replacing blown light bulbs. He would frequently talk with her on weekends when he would pass by her apartment and she was sitting on her porch.
Discussing the events of March 1 and 2, Blankenship noted he began drinking soon after he returned home from work. After some time, he went to the Oriental Bar. From 7:30 that evening until the bar closed at 3:00 a.m., Blankenship continued to shoot pool, drink, and ingest Qualudes. After the bar closed, Blankenship headed home alone.
Instead of returning home, however, Blankenship scaled the balcony of Bowen's apartment. Once on the balcony, he knocked on Bowen's door. There was no answer. He kicked in a window and crawled into the apartment. As he made his way through the apartment, Blankenship saw Bowen in a mirror sitting in her chair. Bowen was speaking to someone near the area of her kitchen. Blankenship said he reached out to grab Bowen and she jumped, tripped over a foot stool, and fell to the floor.
Bowen was now bleeding from her head and was unconscious. Blankenship picked her up and moved her into the bedroom. Once he placed her on the bed, he pulled her pajama bottoms partially off her body. He did not remove her pajama top, which Blankenship said already was unbuttoned. He tried to have sex with her, but could not achieve an erection. At this time, Bowen appeared to be regaining consciousness, so Blankenship left the apartment the same way he entered.
Hendrix asked Blankenship whether the pictures of the crime scene matched his recollection of how he left it. He insisted they did not; he testified that, when he left her, her pajamas where still partially on, whereas in the photos she was completely naked. The plastic bottle was also not there when he said he left. In addition, he said her face was not in the same condition it was when he left it, and that she had not been beaten up.
Blankenship also testified as to his confession. He had been drinking before being arrested by the police in his apartment. He said he did speak with the police, and he did sign the statement. He said, however, that he had pointed out several errors in the typed statement to the interrogating officers, who told him to go ahead and sign it despite the errors. The errors he pointed out—including, for example, that instead of "slid[ing] down in the chair" she actually jumped up from the chair—essentially coincided with the story he had told the jury. In general, his testimony was that the story he told the detectives was the same as what he told the jury, and the typed confession was riddled with errors. He denied having intercourse with Bowen or ever hitting her.
I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

With respect specifically to the execution of Roy Willard Blankenship, I stand mute.

Sunday, January 30, 2011

Oklahoma or Aljazeera: Which is More Rational?

An online program called Fault Lines has an extended (23 minute), reasonably balanced, and well done video about the death penalty. One of the interesting things about the program is that it is produced by Aljazeera, the Arabic news station that came into US awareness during the Second Gulf War. The quality of the video is such that had they used the narrator from Frontline, and had they published the video anonymously, there would be no reason to believe it wasn't a Frontline product.

Aljazeera focused on the death penalty in Oklahoma. They interviewed, among others, Frank Keating. Keating was governor of Oklahoma for eight years beginning in January of 1995.  He presided over 54 executions. At one point, Keating offered this insight into our justice system:
"Nobody goes to court because they're misunderstood. Nobody goes to court because they're accused of a crime they didn't commit. They go to court because they did something."
Well there you go. According to Oklahoma's ex-governor, not only do we not imprison any innocent people, we do not even take them to trial. Those people found not guilty must be not guilty only in a technical sense, not in an actual sense. After all: "Nobody goes to court because they're accused of a crime they didn't commit."

Keating also offered this insight.
"In my case, any recommendation, unless it had to do with guilt or innocence, I ignored. I always brought the defense attorney in, the prosecutor in. The question I asked was 'Did this person do it?' In no case was the answer 'No.'"
I believe I'll look into the executions that took place under Frank Keating's watch. Unfortunately, I suspect I will find some egregious cases.

Stay tuned.

Wednesday, January 26, 2011

Proof Kinda Beyond a Reasonable Doubt

In a previous post, I described the concept of "Proof Beyond a Reasonable Doubt" as a convenient judicial myth. At the end of that post, I presented the following summary plot comparing the idealized concept against the reality of jury and judge verdicts.  I include that plot below for easy reference. Click to enlarge and clarify.
Judges and scholars, if forced to quantify the reasonable doubt threshold, tend place the threshold near 90%. While that number flies in the face of the plot above, it comports with quite a few studies attempting to quantify the threshold.

In his 1993 book Inside the Juror, Reid Hastie provides a summary of studies in which groups of people were merely asked to quantify reasonable doubt after being read a standard reasonable doubt instruction. I repeat his summary in a somewhat simplified form below.

In summary, when our country's jury pool is asked to quantify the reasonable doubt standard, they claim they set the threshold at 85%. That's not much lower than the threshold typically selected by judges and scholars. However even if jurors set the standard that high (the plot at the top of this post proves they don't), it seems to me still to be a problem.

If I have a ten-sided die with sides numbered from 1 to 10, I have a 90% confidence that any single roll will result in a number greater than 1. Do I therefore have proof beyond a reasonable doubt that I will not roll a 1? 

In this simple die rolling experiment, I know that if I set 90% as my threshold for reasonable doubt, I will be wrong nearly 10% of the time, over a large sample of tests. Is that acceptable?

If instead of rolling a die, I am sitting as a juror in a criminal trial, should I vote guilty if I am 90% confident in the guilt of the defendant? If I am willing to do so, does that mean there is a 10% chance the defendant is innocent?

If all my fellow jurors are willing to do so, to vote guilty when we are 90% confident, should we expect a wrongful conviction rate near 10%, just as Spencer and Allen have calculated we do?

Saturday, January 22, 2011

The Terminator, Crickets, Kevin Bacon, and Freedom

You are a critical link. The liberty of two young men depends on you reading this entire post.

The Terminator

When I held a more conventional job, one that actually pays, my colleagues would occasionally mention they had met someone noteworthy. It happened so often, I maintained a Claim-To-Fame list of such encounters. People then sought me out to tell me of their encounters.

One colleague played against Arnold Schwarzenegger in a tennis match. Arnold apparently played tennis pretty much as he acted: without much subtlety. My colleague won easily. ("Lub fordy. Don't return dis serve if you want to live.")

One colleague carried Mandy Patinkin's laundry to the cleaners. ("Hello. My name is Inigo Montoya. You killed my father. Prepare to martinize.")

One had urinated next to Bill Monbouquette. ("A finesse pitcher who relied on changing speeds and a superb control, Monbouquette was signed by the Boston Red Sox as an amateur free agent in 1955 ...") Apparently as a young man, this particular colleague had attended a Boston Red Sox game with his father, had availed himself of the restroom facilities, and was taking advantage of the urinal when the guy beside him decided it was an appropriate time for an introduction: "Hi. I'm Bill Monbouquette."

Still another colleague had an aunt who was a professor at some big-name university. The aunt  hosted frequent parties for the intelligentsia. My colleague claimed, that his aunt claimed, that at different times, five different (and apparently besotted) nobel prize winners knocked over her mail box as they backed out of her driveway.

I myself was on a commercial flight with Peter Graves. I sat somewhat further back in the airplane so we never had a chance to speak. However, we both experienced one of the most terrifying flights I've ever been on, the details of which are beyond this post. I'm serious about this claim to fame, and I'm not talking about the movie: "Joey, do you like movies about gladiators?"

In the unofficial parlance of the small world phenomenon, I claim to be only one degree of separation away from Peter Graves. Each of you can now claim to be only two degrees away. "I read this blog by some guy who thought he might die on an airplane with Peter Graves, so it's like we're almost friends."

The small world phenomenon was first discussed soon after Marconi invented the radio. Seemingly impressed by Marconi's work and its implications, Hungarian author Frigyes Karinthy challenged his readers to find someone he could not be connected to by five or fewer people. Frigyes was apparently the first person ever to suggest than anyone on earth is no more than six degrees of separation away from anyone else on earth.

After more than a century of observation, experiment, and theoretical modelling, Frigyes seems to have come pretty darn close to the answer. Amazing.


Duncan Watts is a bright and curious man. Currently he is a principal research scientist at Yahoo! Research. Previously, he pondered how crickets managed to synchronize their chirps over long distances. His research into synchronized crickets inspired him (along with Steven Strogatz) to develop the first network model of the small world phenomenon. They discovered that the small world phenomonenon is applicable not just to people who know people, but to brains, power grids, computer security schemes and a seemingly endless list of natural and man-made systems.
"I think I've been contacted by someone from just about every field outside of English literature. I've had letters from mathematicians, physicists, biochemists, neurophysiologists, epidemiologists, economists, sociologists; from people in marketing, information systems, civil engineering, and from a business enterprise that uses the concept of the small world for networking purposes on the Internet."
Think Facebook.

One of Watts' conclusions I find interesting is that randomness is critical to the small world phenomenon.  A perfectly ordered system is a horrifically ineffective means of spreading information. Add just a few random links, however, say one or two percent of the total, and the system becomes very efficient.

To understand this, assume everyone on earth is ordered in a gigantic square. (When we had only 4.9 billion people on earth, that would be a square with 70,000 rows of 70,000 people.)  Assume you can communicate with people in no larger than a fifty person radius, and you want to contact Juan Luigi Chan, Jr. You know Juan Luigi is somewhere in the far corner of the square. The best you can do is yell to someone fifty people away in that direction, asking them to relay a message to Juan Luigi Chan, Jr. who is somewhere in the far corner. That person can then yell to someone else fifty people away and so on. It's going to take a while for your message to get there.

Assume people on average are half a grid away, on a diagonal somewhere. It would take (excuse me while I make use of the Pythagorean theorem) 990 links minimum to get close, then a few more to home in on Juan Luigi Chan, Jr.

Now assume you are also friends with 100 or so people scattered randomly around the huge grid, and you know exactly where each of those friends is, and you can call any one of them on your cell phone. You don't yell to your buddy fifty feet away. You call your friend who near the far corner of the humanity grid. "There's someone in your area named Juan Luigi Chan, Jr. I want to talk to him. I figure you don't know him, but check someone you think might, and see if that person knows him. Pass along my phone number and have Juan give me a call. Thanks, I owe you a solid."

Your phone will be ringing in no time, after no more than five intermediate phone calls.

Kevin Bacon

For some reason, Kevin Bacon has become the American name most associated with the small world phenomenon. For a long time, I've heard people talking about being fewer than six degrees of separation away from Kevin Bacon. In fact, Visa used the bit in a clever commercial.

Kevin Bacon is so closely tied to the small world phenomenon that when you are talking about your connection with him, you don't use the term "degrees of separation." You use the term "Bacon Number." If you are two degrees of separation from Kevin Bacon, your Bacon Number is 2.

In the original sense, connections to Kevin Bacon were allowed only via movie connections. Only actors or actresses could therefore have an official Bacon Number. That rule has since been substantially relaxed, as evidenced by the commercial. However, if you would like to see the small world phenomenon in action, try the brilliant and easy to use utility at The Oracle of Bacon.

According to the Oracle of Bacon, Arnold Schwarzenegger has a Bacon Number of only two. Arnold appeared with Todd Stashwick in the movie The Rundown (2003) and Todd appeared with Kevin in the movie The Air I Breathe (2007). 

And with that insight, I have come full circle, from Arnold Schwarzenegger to Kevin Bacon. It is now time to learn about how this relates to freedom.


I estimate that there may be a quarter million people wrongfully incarcerated in this country. That's 10% of the 2.5 million people we currently have incarcerated.

Of that quarter million, there are two I am actively and persistently attempting to help free. Those two are Byron Case and Michael Ledford.

Bryon was wrongfully convicted of murder and armed criminal action. He is serving two life sentences without parole in Missouri. Byron has been through all his appeals, up to and including the U.S. Supreme Court. (They simply refused to hear his case.) Byron has left to him an appeal based on actual innocence and a plea for clemency.

Michael was wrongfully convicted of murder and arson. He is serving 50 years in Virginia, which has no parole for anyone. Michael has used (or has time defaulted on) all his appeals. All of them. He has left  to him only a plea for clemency.

To free a person wrongfully convicted of a serious crime, you must prove that person to be factually innocent beyond any reasonable doubt. It's not the law, it's a fact of life. It's nowhere good enough to argue that the person did not receive a fair trial, or that the prosecution withheld evidence, or that witnesses lied. None of that matters. When it comes to freeing the wrongfully convicted, you must produce proof of innocence.

In each of the two cases, I know what really happened. I know not because someone told me, but because I've lived immersed in the data for months and months and months. In each of the two cases, I can point to the evidence which will prove innocence. It will, however, do neither of them any good, because I am not an expert in the field at question. This too is a fact of life.

I need to find, somewhere out there in the vast sea of humanity, two experts who will be the key to freeing Byron Case and Michael Ledford.

And now you can see where I'm headed. I'm trying to find two people among the great sea of humanity. I don't know their names or where they live, but I can describe them to you, and you can ask around.

Each person is intelligent, highly-qualified, and generous. Each person would be personally offended that an innocent person would be imprisoned for life for a crime they did not commit. Each person would be willing and able to provide his or her expertise pro bono to correct a terrible wrong.

The first person has expertise regarding a little-used time-of-death indicator. More specifically, the first person can speak with expertise regarding how long a person has been dead if that person's corneas are not cloudy, though the person died with their eyes open. The person probably works in the medical field, possibly as a medical examiner, pathologist, eye surgeon, or ophthalmologist. That person might work in the field of corneal transplants.

The second person should be easier to find. That person has expertise regarding the interpretation of the evidence left behind by fires. More specifically, that person can determine from photos of circuit breakers, wall outlets, cords, and plugs whether a related fire was caused by an electrical problem.

Each of you reading this post is no less than one-sixth of the distance between Bryon Case and the person who might help free him.

Each of you is also no less than one-sixth of the distance between Michael Ledford and the person who might help free him.

I suspect none of you reading this post are either of the two people I seek. I suspect also there is but little chance you know either of the people I seek. I believe, however, that you know someone who might know someone who might know one of the two people who can help.

Please ask that person you know. Please ask them to forward a message from me to someone they know who might know the person I seek.
"I need your assistance. You are a critical link. The rest of a young man's life is at stake. Please write me at"

Wednesday, January 19, 2011

Michael Ledford: Confession Falsified by Smoke and Mirror Images

For those of you just joining in this case, allow me to bring you up to speed quickly.

One month after an apartment fire took the life of his one-year-old son and seriously burned his wife, Michael Ledford signed a document stating:
Around 8:00 P.M. we put Zach to bed then Elise went to bed at 8:30 P.M. I told Elise that I was going to put gas in the car and put my name on the EVAC sheet at the firehouse then write the check for Pied Piper then go to bed. Before I left, I lit a candle and threw it in the chair. I never wanted to hurt my family. I was tired of trying to live up to Elise's parents' standards. I now wish I had took my mom's advice and moved back to Pennsylvania. I agree I need help, and willing to get -- and willing to get help. I just hope my family and friends and God can forgive me.
Michael recanted but to no avail. At trial, two fire investigators confirmed the arson. A jury convicted Michael Ledford of first-degree murder and arson of an occupied dwelling. A judge sentenced him to 45 years for the murder and 5 years for the arson. The sentences are to be served consecutively. There is no parole or early release in Virginia.

I am convinced Michael Ledford is innocent, and I intend to prove it. 

Confession Falsified by Thermodynamics

Michael's confession cannot be true. The fire scene photos show neither candle wax residue nor candle holders. Based on Michael's written confession and his more detailed video taped confession, there should have been both.

A detailed timeline analysis coupled with the most sophisticated fire simulation available today shows  that Michael was not at or near the apartment when the fire started. The fire started between 4 and 14 minutes after his departure.

Confession Falsified by Smoke

New content follows.

The electrical service panel was located in the master bedroom, well removed from the fire in the living room. The bedroom suffered light-to-moderate smoke damage. I present the service panel and the surrounding smoke damage below. I have cropped the picture to preserve (to the extent possible) the privacy of those people I hope to help.

Below, I provide a closeup of the same service panel, this time with the panel door closed. You can see that soot has settled along the upward facing surface above the door.

There are, however, streaks of soot projecting from the bottom of the panel door and faceplate, particularly at the lower right corner. These streaks are suggestive of smoke being expelled under pressure from within the panel.

It's time to look inside.

The soot inside the panel is considerably denser than outside the panel, though the panel door was presumably closed during the fire. Even if the door had not been closed, the more intense deposition of smoke inside the panel cannot be explained by a living room fire alone.

The police and insurance investigators should have pulled the panel faceplate. They should have examined the circuit breakers. They make no report that they did. Something burned behind the faceplate. Something burned with sufficient intensity to deposit the smoke you see above, and burned with sufficient intensity to eject smoke from the lower corners of the panel door.

Though Virginia Police Agent James Watson and insurance investigator Gary Toler profess to be experts in fire investigation, and though I make no such profession, I am adamant nonetheless that they should have examined and photographed each circuit breaker in detail.

The smoke inside the electrical service panel is evidence of an electrical fire at the Ledford residence. The smoke inside the electrical service panel was not caused by a candle thrown into a chair in the living room. The smoke in the service panel disproves Michael Ledford's confession.

Confession Falsified by Mirror Images

In the picture above, notice the text "CH 7BF" impressed on the back of the panel door. Though I have been working on this case for more than five months now, only recently have I made a serious effort to determine if that text is significant. I spent many hours prowling the internet researching that text in particular and circuit breakers in general. The text was a stone I did not want to leave unturned.

As it turns out, the first two letters of the text are of great significance. Here was the big discovery.
All circuit breakers do not trip to the center position. The following circuit breakers do not have a center position, and they trip to the "off" position: Cutler Hammer, Bryant and Murray.
It hit me that the CH stands for Cutler Hammer. I confirmed this by comparing images from the fire scene with images from Amazon. The panel from the Ledford apartment is on the left. A typical Cutler Hammer residential panel from Amazon is on the right.

The models are not identical, but the similarity of design is obvious. Most obvious are the vertical lines on the door bounding a raised region, possibly added for ventilation purposes. One noticeable difference is that the Ledford panel is missing its pull handle. I don't know if that is significant.

Most circuit breaker handles move only slightly (to a "middle" position) when they pop. For those breakers, you have to look carefully to distinguish which breaker just popped and needs to be reset. To reset it, you have to move it first to the fully "off" (fully open) position and only then can you move it back to the "on" (fully closed) position.

This understanding of the Ledford breaker manufacturer and operation confirms what I had suspected. All the circuit breakers on the left hand side of the panel (plus the bottom circuit breaker on the right hand side) popped sometime during the fire. They popped from their fully "on" position to their mirror image fully "off" position.  You will see that if you will look at the picture once again. I therefore provide the picture once again. Click on the image to see it enlarged and clear.
When the switches popped, the handles moved away from the center. Because these are Cutler Hammer breakers, the handles moved a relatively long distance, all the way to the fully "off" position. In doing so, new and noticeable portions of the breakers were exposed to the smoke. The breakers that popped during the fire had the newly exposed portions sooted by the smoke. Those which were manually thrown after the fire show the white region that was protected from the smoke during the fire. Those breakers stayed on during the fire.

To understand the significance of this, you need to understand how a circuit breaker works. I quote from the same reference as above.
A temperature sensitive bimetal strip ... bends and releases the spring mechanism at a calibrated temperature. Usually, the temperature of the bimetal strip is proportional to the amount of current passing through the circuit breaker. However, the bimetal strip will react and bend to any rise in temperature. The rise in temperature may be due to a loose wire connection, misalignment of the circuit breaker contacts, or the heat from a fire. 
In other words, a circuit breaker is designed to trip when it becomes hot, usually due to excess current flowing through it. Excess current flows when there is too little resistance in the circuit protected by the breaker. When a line shorts, when two wires touch without a lamp or a heater or a microwave in between, excess current flows through the circuit. This causes the bimetal strip in the circuit breaker to heat, bend, and thereby release a spring mechanism which pops the switch. In a Cutler Hammer circuit breaker, the switch movement is unequivocal.

A circuit breaker will also pop open if the bimetal switch is heated by any means other than excess current.  If one breaker in the panel overheats but fails to pop open as designed, the heat from that switch will begin to burn the surrounding material and will begin to heat the other breakers. If the faulty breaker generates sufficient heat, smoke will be expelled from the breaker box and the other breakers will begin to pop.

That's what happened in the Ledford apartment. The evidence you see in the photos is evidence of a short in a circuit elsewhere in the Ledford apartment. It is evidence also of a circuit breaker that failed to open as it heated up.

Now what?

I'm not done. Not by a long shot. I set out to find the origin of the fire. The breaker box in the master bedroom is not the origin of the fire in the living room. The breaker box in the master bedroom is but a glaring symptom of an electrical short elsewhere in the house.

I set out to find the short, and find how that short set fire to the living room. What I learned along the way has shaken me to my core.

Tuesday, January 18, 2011


"Yet most of all grant us brotherhood, not only for this day but for all our years -- a brotherhood not of words but of acts and deeds. We are all of us children of earth. Grant us that simple knowledge. If our brothers are oppressed, then we are oppressed. If they hunger, we hunger. If their freedom is taken away, our freedom is not secure. Grant us a common faith that man shall know bread and peace -- that he shall know justice and righteousness, freedom and security, an equal opportunity and an equal chance to do his best, not only in our own lands, but throughout the world. And in that faith let us march toward the clean world our hands can make."

Franklin Roosevelt
June 14, 1942

Friday, January 14, 2011

Leroy White Executed by the People of Alabama

Leroy White was executed yesterday after a brief stay by Justice Clarence Thomas.

I just learned that a recent friend of ours died earlier today of natural, but harsh cause.

Both deaths were expected.

Wednesday, January 12, 2011

Off Topic: Jets v. Patriots

Been a while since I went off topic, but January has been so darn depressing I think we all need a "pick-me-up."  So I'm going to give you my pick on who is going to win the Jets / Patriots game this weekend.

Unlike other forecasters who rely on knowledge of the game and its players, I prefer to pick the games based on the behavior of key players outside the field of play. Why take all that time to study game films and compile passing stats when I can just pick based on who gets on my nerves?
For me, this game comes down to Tom Brady (quarterback for the Patriots) versus Antonio Cromardie (cornerback for the Jets.) All I have to do is figure out which of the two bugs me the most, and pick his team for the win. I don't know why it works, it just does. The teams that have the least annoying players never win. It's a cosmic rule. It's why the Angels can't win a World Series: disqualified due to their team name alone.

First I'll evaluate Tom Brady. Here is Tom pissing me off by telling me to turn off my lights to save the earth.

Then Tom spent $7500 for Christmas lights last year, after telling the rest of us to turn ours off. He's a strong contender, no doubt.

But Antonio Cromardie won't give up without a fight. Check this video where Antonio tries to remember how many children he has, their name, and their age.  He tries this after explaining how "you got to be that father figure, you know. That husband."

I count 8 children, including 2 newborns and 4 children who are 3 years old or thereabouts. I concede I may have been unable to understand some of the childrens' names. Here's my best effort accounting them.
  • Alonzo who is 5.
  • Kerry which is 3.
  • My junior which is 3.
  • My daughter who just turned 3 as of yesterday.
  • Tyler, he turns 3 in December.
  • Daughter born October 16th named London.
  • Lailani is 2 years old.
  • My newborn, with my wife, her name is Jersey.
Now for the moment you've been waiting for.

I pick the New England Patriots to defeat the New York Jets. At least Antonio made me laugh.

Texas Good To Go on Killing Its Citizeny

The Court of Criminal Appeals in Texas has put an end to Judge's Fine's hearing on the constitutionality of Texas' death penalty.
Because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute, we conclude that the trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment. He is acting beyond the scope of his lawful authority. Therefore, the State has demonstrated a clear right to relief. We conditionally grant mandamus and prohibition relief and, if he does not do so himself, will order the trial judge to dismiss Mr. Green’s “Amended Motion...
I believe the CoCA ruling is correct as a matter of law. Read the entire ruling at the link if you wish to make your own informed decision.

I believe that Judge Fine is correct, as a matter of fact, when he claims that innocent people have been executed. Though I am far from my stated goal of reviewing all 460+ executions in Texas, I have already found four people probably innocent but definitely executed. Those four are:

Each of those four appealed to the Court of Criminal Appeals in Texas for relief. Each was denied relief. Each died with a needle in his or her arm.

Regarding Spence, one of three alleged accomplices is still alive and still serving a life sentence. The likely actual culprit is dead, having shot himself in the head when the police attempted to arrest him for the fatal stabbing of an elderly couple.

I now have the trial transcripts and many other documents for the Spence case. I have much more research to do. I'll be writing more about his case this year.

Cleve Foster Execution Stayed At Last Moment

The U.S. Supreme Court intervened at the last moment to stop the execution of Cleve Foster. That story is here. My analysis of the Foster case is here.

Jeffrey Matthews Executed by the People of Oklahoma

This blog received an inordinate number of hits regarding Cleve Foster. His execution was stayed by the U.S. Supreme Court. My independent analysis of the case led me to believe Foster is almost certainly guilty. I continue to stand mute on his execution.

This blog received even more hits regarding Richard Clay. He was granted clemency, life in prison without parole. My independent analysis of the case led me to believe Clay was quite possibly innocent. I am ecstatic that Missouri Governor Jay Nixon granted clemency.

This blog received no obvious increase in traffic regarding Jeffrey Matthews. He was executed yesterday by the people of Oklahoma. I find no news articles of that execution. I refer you instead to this page.

My independent analysis of the case led me to believe Matthews was almost certainly guilty. I continue to stand mute on his execution, with this exception. It makes me sad to see a man die so.

Tuesday, January 11, 2011

On The Rate of Wrongful Conviction: Chapter 0.0

As I have mentioned many times previously, I am (slowly) preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number
Chapter 10.1: A Skeptical Juror Number
Chapter 10.6: The Spencer Number
Chapter 11.1: A Skeptical Juror Number
Chapter 11.4: The Common Man Number

Here I present the introductory post to the monograph, Chapter 0.0.  It's been a long time coming. It took far more research than I anticipated, I've been busy, the dog ate my homework, and the sun was in my eyes. Now finally, after all this time, I present:

Chapter 0.0
The Learned Hand Number

Joseph DiCarlo

We begin our investigation into the rate of wrongful conviction in Buffalo, New York, on New Year's Day, in the year 1924. Joseph DiCarlo was then, according to the federal government, a drug pusher. At the time, nearly a century ago, the pushed drug of choice was morphine or cocaine.

One of DiCarlo's customers was "one" Pattitucci, as the customer is memorialized in the appellate court records, for Pattitucci's first name was not reported. Pattitucci was a restaurant owner, a morphine user, and a downstream distributor. The Feds raided his restaurant, convicted him, and sentenced him to two-years in prison. The Feds then offered him a trade: his freedom for his testimony.

The Feds, of course, had no particular interest in Pattitucci. They were after bigger prey. They wanted DiCarlo. Pattitucci testified before the grand jury, DiCarlo was indicted, and Pattitucci was scheduled to be the star witness at DiCarlo's trial.

It was under those circumstances that "one" Pattitucci and May Gilmore were walking together in Buffalo, on New Year's Day in 1924. May Gilmore was, in the words of the appellate records, Pattitucci's leman. In today's vernacular, Pattitucci and May Gilmore were lovers. Suddenly, a car pulled alongside them, the drug pusher and his leman. Two of four men exited the car and attacked Pattitucci, shooting him through his chin.

Despite his injury, Pattitucci ran and escaped his four assailants, though they were armed and he was not, though they had transport and he did not. Pattitucci later and repeatedly identified all four assailants in the presence of the police and hospital staff. One of those assailants was Joseph DiCarlo.

Pattitucci was soon once again before a grand jury, once again testifying against Joseph DiCarlo. May Gilmore also testified before the grand jury. She also identified DiCarlo as one of the two men who exited the car and attacked Pattitucci. DiCarlo was indicted once again, this time charged with obstructing justice and intimidating a witness.

During his trial on those two charges, DiCarlo produced "many" witnesses to show he was in the New York City central train station at the time of the attack. His defense was also buttressed, and substantially so, by none other than government star witness May Gilmore. Contrary to her grand jury testimony, and to the shock of the prosecution, Gilmore testified that she did not actually see who attacked Pattitucci and could not place DiCarlo at the scene.

Shocked that the jury should hear such exculpatory testimony, the judge granted the prosecutor wide latitude in impeaching Gilmore's testimony by use of her grand jury testimony and her previous statements. Gilmore refused to budge. This stubbornness so frustrated the judge that he ordered the prosecutor to arrest May Gilmore for perjury, right then and there, right in front of the jury and the other witnesses.

DiCarlo was naturally convicted. He appealed that conviction based in part on the adverse treatment of May Gilmore for her refusal to testify as the government wished her to testify. DiCarlo argued that the judge had contaminated the jury and had intimidated all other witnesses, particularly government witnesses, who might otherwise testify to the displeasure of the prosecution.

It was an ironic appeal in that the government secured a conviction for witness intimidation by intimidating its own witnesses. The U.S. Second Circuit Court of Appeals, however, failed to see the irony. In sustaining DiCarlo's conviction, Justice Learned Hand wrote:
The next point arises from the commitment [i.e. arrest] in the presence of the jury of the witness Gilmore for perjury. Before the grand jury she had identified DiCarlo [and another] as the persons who, stepping from the motor car, had attacked Pattitucci. At the trial she refused to say that she could any longer do so, although the learned judge allowed great latitude in her examination to the prosecution. At the conclusion of her examination she was committed [i.e. arrested] for perjury. 
[I]n McNutt v. U.S. … similar action was made a ground for reversal, largely because of its supposed effect upon other witnesses. We cannot disguise the fact that this may at times be the result; the practice is certainly inadvisable. Still it seems to us that a conviction should not be reversed on the mere possibility that witnesses may have been intimidated.
Though admitting precedence instructed such errors be handled as fatal, Learned Hand affirmed DiCarlo's conviction. In his weak justification for ignoring the precedent clearly established in McNutt, Hand simply proclaimed that none of the other nine government witnesses to follow Gilmore's testimony would have been intimidated. He made no effort whatsoever to address the adverse impact of the judge's action on the impartiality of the jury.

Learned Hand had still other issues to blithely dismiss before he could affirm the conviction. One of those issues was the seemingly troublesome possibility of actual innocence. Learned handled it with aplomb.
After the conviction, Pattitucci, who had quarreled with May Gilmore, tried to kill her, and, failing, poisoned himself. After his death, the defendants produced a written recantation of his evidence, stating that the defendants were innocent, and that his assault had been by others out of jealousy. The learned District Judge, after a careful consideration of the evidence submitted, concluded that the circumstances were too doubtful to demand a retrial of the cause. If it be a defect in our system of criminal procedure that such a decision is not reviewable, certainly we cannot correct it. We must decide the case upon the record here, and the defendants have no further recourse, except to executive clemency.
Learned Hand was reviewing a case in which multiple ("many") witnesses placed the defendant far from the crime, where the victim's companion testified she did not see the defendant commit the crime (and stood by that testimony even in the face of arrest for perjury), and where the victim himself later provided a written recantation exonerating those he had accused (after attempting to murder the female witness, and before killing himself.) Even under those circumstances, Hand could not bring himself to believe that DiCarlo, or any other defendant, might have ever been wrongfully convicted.

Learned made that point clear as he dismissed an additional claim by DiCarlo that the prosecutor's closing argument was improper. Apparently DiCarlo was troubled that the prosecutor attempted to subtly (but not too subtly) suggest DiCarlo was a member of the Mafia.
[T]he learned counsel permitted himself by way of peroration [i.e. his dramatic conclusion] to put some theoretical questions to the jury. These called upon them to put an end to the rule of the 'dagger and the stiletto,' to the 'invisible power behind these defendants.' We cannot find any abuse in such comments. It is indeed fatuous to complain of the allusion to the stiletto when a revolver was used. An 'invisible power' might or might not be inferred from their 'attitude on the stand.' … To shear [the prosecutor] of all oratorical emphasis, while leaving wide latitude to the defense, is to load the scales of justice; it is to deny what has always been an accepted incident of jury trials, except in those jurisdictions where any serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted. … The judgements are affirmed.

Learned Hand

Billings Learned Hand is perhaps the most highly regarded justice to have never served on the Supreme Court, present justices excepted so as not to cause harsh feelings. Learned served 25 years on the U.S. District Court for the Southern District of New York and then 37 years on the United States Court of Appeals for the Second Circuit. That's 62 years behind the bench. During that time, he published more than four thousand opinions. He is allegedly quoted more often by legal scholars and the U.S. Supreme Court than any other lower court judge.

When Supreme Court Justice Benjamin Cardozo was asked which of his Supreme Court colleagues was the greatest living American jurist, Cardozo replied “The greatest living American jurist isn’t on the Supreme Court.” Instead, Justice Cardozo reserved that honor for Learned Hand.

Marc Arkin, in a book review for The New Criterion, referred to Learned Hand as "The Tenth Justice."

Once in 1930 and again in 1942, Learned Hand was nearly, but not actually appointed to the Supreme Court. Learned Hand was to the Supreme Court what Hubert Humphrey was to the presidency: the national figure bridesmaid, the winner of our country’s consolation bracket, the man who should have served at the highest level but never did.

I’m glad he didn’t.

Richard Posner, the reigning superstar of appellate judges, claims that Learned Hand
“displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn’t think judges should have anything to do with it.”
Learned Hand’s strength was in areas such as antitrust, intellectual property, tort, and admiralty law. Other than First Amendment issues, Hand was not particularly a fan of the Bill of Rights. He considered the Bill as merely a set of “admonitory” principles. He was particularly offended by the two due process clauses, the one in the Fifth Amendment …
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; …”
… and the other one, added well after the Bill of Rights, in the Fourteenth Amendment.
“… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …”
Learned perceived the due process clauses to be an invitation for federal courts to intervene into issues that he believed should be reserved for the state courts. He went so far as to advocate for the removal of the due process clauses. Then, to put the icing on his anti-due-process cake, he took public exception to the U.S. Supreme Court decision in Brown v. Board of Education. Recall that decision declared state-enforced segregated schooling to be unconstitutional. Learned described the decision as judicial abuse.

Learned’s apparent displeasure with the Bill of Rights in general, and the due process clauses in particular, pale in comparison to his apparent displeasure for those accused of crimes. As he had in DiCarlo (1926), Hand declared in United States v. Garsson (1923) that the thought of an innocent man wrongfully convicted was nothing more than an ethereal fiction.  
Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. … The motions are denied.
Learned Hand's preferences among classes of people are poorly hidden in his judicial opinions. Based on the few excerpts already provided, judges are frequently "learned." District attorneys are occasionally "learned."

Defense attorneys obstruct, delay, and defeat the prosecution of crime.

Faithful prosecution witnesses are stalwart individuals worthy of belief beyond a reasonable doubt.

Apostate prosecution witnesses are worthy of immediate arrest and gratuitous identification as a leman.

The accused are shown too much tenderness.

The convicted are never innocent.

Harry Berger

Harry Berger was convicted of conspiracy to distribute counterfeit money based exclusively on the testimony of Jack Katz. Katz would later be described by Learned Hand as "a thoroughly unreliable person."

Katz had a long history of forgery and larceny convictions. He sold his testimony against Berger (and Berger's co-defendants) for a substantial sum. The Feds reduced his prison time from 122 years to 2 years, and reduced his fine from $50,000 to $10,000.

In return, Katz testified extensively about the alleged, extensive wrongdoings of Berger's co-defendants. With regard to Berger however, Katz claimed only that on one occasion he gave Berger four counterfeit bills that Berger immediately handed over to one of the co-defendants. That was it for the testimonial evidence against Berger.

It seems quite possible that Katz threw Berger to the prosecutorial wolves merely on a whim. Katz believed that Berger had been romancing Katz' wife. The prosecution, nonetheless, pursued Berger with zeal.

No testimony, documents, or physical evidence corroborated Katz' version of the alleged isolated and transient event. Multiple witnesses testified that Katz had earlier told them that Berger had nothing to do with the counterfeit bills.

US Attorney Harry Singer, however, did not take all the trouble to charge and try Harry Berger just to lose a case due to lack of evidence. Singer instead presented such a masterfully convoluted case that the jury convicted despite the absence of credible evidence. To understand how Singer did that, to believe it, you need to read at least a portion of the transcripts.

Consider therefore the following exchange from Harry Singer's cross-examination of Harry Berger. The excerpt is but a small portion of Singer's effort to heap ridicule upon Singer's character. We pick up the testimony after Singer has accused Berger of having several women "stay overnight" and of "indulging in whatever you say was your privilege with this lady." In the exchange to follow, Singer implies that Berger intends to physically attack him, but only after asking about the man without pants who wasn't there.
"The man who didn't have his pants on and was running around the apartment, he wasn't there?" >> No, Mr. Singer. Mr. Godby told me about this, he told me, as long as you ask me about it, if you want it, I will tell you, he told me `If you give this man's name out, I will give you the works.'
"Give me the works?" >> No, Mr. Godby told me that.
"You are going to give me the works?" >> Mr. Singer, you are a gentleman, I have got nothing against you. You are doing your duty.
[Defense attempts to clarify. Court stands mute. State proceeds.]
"Wait a minute. Are you going to give me the works?" >> Mr. Singer, you are absolutely a gentleman, in my opinion, you are doing your duty here.
"Thank you very much. But I am only asking you are you going to give me the works? >> I do not give anybody such things, I never said it.
"All right. Then do not make the statement."
[Defense objects. Court instructs defense to not interrupt.]
Singer then proceeds to ask repeatedly about whether he, the judge, or the jury had ever been in the apartment where the man without pants had not been either.
"I asked you whether the man who was running around this apartment …, was he there in the Secret Service office on the morning that you were arrested?" >>I didn't see him. 
"I wasn't in that apartment, was I?" >> No, Mr. Singer. 
"I didn't pull the gun on you and stick you up against the wall?" >> No. 
"I wasn't up in this apartment at any time, as far as you know, was I?" >> As far as I know, you weren't. 
"You might have an idea that I may have been there?" >> No, I should say not. 
"I just want to get that part of it straight. … Was I in that apartment that night?" >> No, but Mr. Godby -- 
"Was Mr. Godby in that apartment?" >> No, but he has been there. 
"Do you include as those who may have been there the Court and all the jurymen and your own counsel?" >> Mr. Singer, … are you serious about that? 
[Defense objects and is overruled.] 
"I would like to have an answer to it." >> Mr. Singer … that is ridiculous.
Singer then grills Berger about a threat Singer concedes Berger never made.
"Now Mr. Berger, do you remember yesterday when the court recessed for a few minutes and you saw me out in the hall; do you remember that?" >> I do, Mr. Singer. 
"You talked to me out in the hall?" >> I talked to you? 
"Yes." >> No. 
"You say you didn't say to me out in the hall yesterday, `You wait until I take the stand and I will take care of you.' You didn't say that yesterday?" >> No; I didn't, Mr. Singer. You are lying. 
"I am lying, you are right. You didn't say that at all?" >> No. 
"You didn't speak to me out in the hall?" >> I never did speak to you outside since this case started, except the day I was in your office, when you questioned me. 
"I said yesterday." >> No, Mr. Singer. 
"Do you mean that seriously?" >> I said no. 
"That never happened?" >> No, Mr. Singer, it did not. 
"You did not say that to me?" >> I did not. 
"Of course, I have just made that up?" >> What do you want me to answer you? 
"I want you to tell me I am lying …"
Prosecutor Singer's conduct during his closing argument was equally egregious. Regarding a witness who testified she could not identify Berger, Singer told the jury he personally had inside knowledge she was lying.
Mrs. Goldie Goldstein takes the stand. She says she knows [a co-defendant], and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm, everybody started to holler, ‘Don’t point at him.’ You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, ‘Isn’t that the man?’ Now, imagine that! But that is the rules of the game, and I have to play within those rules. … But, oh, [the defense attorneys] can twist questions … [T]hey can sit up in their offices and devise ways to pass counterfeit money; "but don’t let the Government touch me, that is unfair; please leave my client alone."
Rather than confusion and revulsion, Singer's verbal assaults on Berger's character were met with laughter and a guilty verdict. Even the judge, who allowed the circus to take place within his courtroom, found it necessary on multiple occasions to caution against laughing.

Once the laughter subsided, and the guilty verdict rendered, the judge sentenced Berger to one year and a day in the penitentiary.

Learned Hand

Berger appealed for relief to the U.S. Court of Appeals for the Second Circuit. Surely this verdict could not be allowed to stand. The only substantive witness for the prosecution provided his uncorroborated testimony in exchange for 120 years of his life and $40,000 of his money. The prosecutor's behavior was beyond the pale, and the judge failed to control the prosecutorial excess.

Learned Hand was unimpressed by Berger's claims. He wrote the Second Circuit opinion affirming the conviction. Early in that opinion, Hand acknowledged both the importance of Katz' testimony and the unreliability of his character.
[The State's case] depended chiefly upon the testimony of Katz who turned state's evidence against the rest; who had been several times convicted of other crimes; and who was a thoroughly unreliable person. 
Learned quickly explained such considerations were unworthy of review.
We have frequently said that we would not ordinarily intervene in an issue depending on the credibility of witnesses and there is no reason to make an exception here.
Learned then dealt with the prosecutor's conduct in a single paragraph.
Berger also complains of the conduct of the prosecuting attorney. It is indeed true that this officer failed in moderation and good taste; we might have been better content had the trial judge seen fit to keep him more closely in hand than he did. But the abuse of his position as prosecutor -- for it seems to us to have been such -- was not so extreme as to require us to upset the judgment. … [I]t would be extravagant now to reverse the conviction on its account, for it is fantastic to suppose that it substantially determined the outcome. … [T]oday, when mere possibilities do not interest us as they did our forerunners, we demand more tangible evidence that damage has been done. … Judgment affirmed.
No more impressed with Learned Hand back then than I am now, Harry Berger appealed to the U.S. Supreme Court. Though Berger's case was inconsequential in terms of crime and punishment, and though it raised no constitutional question, the Supremes for some reason agreed to hear his case. They were unimpressed both by the prosecutor and by those on the Second Circuit who failed to find reversible error in his behavior.
That the United States prosecuting attorney overstepped the bounds of that propriety and fairness … is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. … It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken. 
The prosecuting attorney's argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury. A reading of the entire argument is necessary to an appreciation of these objectionable features. 
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... Judgment reversed.

Jerome Frank

Jerome New Frank joined in the Second Circuit Court in 1941 after Billings Learned Hand had been sitting there for 17 years. Jerome was clearly unimpressed by his learned colleague's portrayal of the wrongfully convicted as ghostly phantoms or unreal dreams. He would become a pain in the otherwise unanimous butt of the United States Court of Appeals for the Second Circuit Court.

For the period 1942 through 1950, the time span when both Frank and Hand served complete years on the court, I found 186 criminal appeals in which the Second Circuit found exclusively for the state, and 60 cases in which the Second Circuit found exclusively for the defence. Each criminal appeal was normally heard by any three of the following justices:

Learned Hand (1924 - 1961)
Thomas Swan (1926 - 1975)
Augustus Hand (1927 - 1954)
Harrie Chase (1929 - 1969)
Charles Clark (1939 - 1959)
Jerome Frank (1941 - 1957)

Billings Learned Hand and Augustus Noble Hand were cousins. Augustus dissented in but one of the 246 cases in my database, and that was for a case in which cousin Learned was not involved. Learned dissented in only five of the cases, only once when cousin Augustus was hearing the same case. In that one disagreement, Augustus found for the defendant and Learned felt compelled to dissent.

Dissents were rare regardless of who was hearing the case, unless one of those hearing the case was Jerome Frank. Thomas Swan never dissented. Augustus Hand and Harrie Chase dissented only three times combined, and then only when the majority found for the defendant. Learned Hand and Charles Clark dissented only twelve times combined, splitting their dissents for the state and the defendant.

Jerome Frank, by comparison, dissented 29 times, 28 of those in cases where the majority found for the state. He dissented not only more frequently than did his colleagues, he dissented with greater fervor. In United States v. Rubenstein, Learned Hand used 2,141 words to affirm the conviction a man charged with aiding the immigration of a woman via a sham marriage. Jerome Frank used 5,022 words in his dissent, including those words in his 27 footnotes.

Not to be outdone, Learned Hand later used 5,793 words and 4 footnotes to uphold the verdict against four individuals in United States v. Antonelli Fireworks. Jerome Frank countered with 19,580 words, 79 footnotes, and 3 appendices in his dissent.

Where Learned Hand portrayed wrongful convictions as ghostly phantoms, Jerome Frank referenced Edwin Borchard.

Borchard's groundbreaking work Convicting the Innocent was published 1932. Borchard therein documented 65 cases of people wrongfully convicted. He included cases where the alleged murder victim reappeared, where the actual culprit was later captured and confessed, and where compelling, exculpatory evidence appeared after conviction. Borchard laid low any claim that wrongful convictions were but ghostly phantoms.

Where Learned Hand portrayed wrongful convictions as unreal dreams, Jerome Frank noted the contemporaneous case of  Bertram Campbell.

Campbell was, while Hand and Frank were writing opinions, serving five-to-ten in Sing Sing for forgery and grand larceny. Though identified by multiple bank employees as the person who passed forged checks, Campbell proclaimed his innocence. Before his sentencing, he sent a note to the judge: "I solemnly swear to you by all that I hold holy, and by the lives of my dear wife and children, that I am absolutely innocent of the crimes for which I was convicted."

Master forger Alexander Thiel, captured for a string of other check forgeries, confessed to the crime for which Campbell had been convicted. Most, but not all, of the bank employees retroactively confirmed that they must have witnessed Thiel rather Campbell, though the two had only a passing resemblence. The employees were perhaps led astray by the wax-tipped mustache actually worn by Thiel but only inked onto photo the employees were shown of Campbell.

While Learned Hand fretted about the "archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime," Jerome Frank referenced the 1931 report of the Wickersham Commission.

Established in 1929 by President Hoover, the National Committee on Law Observation and Enforcement, better and more easily known as the Wickersham Commission, reported egregious abuse of power by both police and prosecutors, finding for example that "the third degree - the inflicting of pain, physical or mental, to extract confessions or statements - is widespread throughout the country." With respect to prosecutors, the commission reported widespread, inexcusable ignorance of elementary principles of criminal justice. They reported also blatant disregard of defendants' rights including character assassination, interjection of inadmissible evidence, and inflammatory closing arguments. The conclusion concluded that such behavior could lead to the "conviction of the innocent."

Harmless Error

No issue so frequently prompted Frank's dissent as did the Second Circuit's pervasive reliance on the concept of harmless error. In Rubenstein, Frank wrote:
The only conceivable … basis … for not reversing this judgment must be the tacit application of the unique interpretation of the phrase "harmless error" which has unfortunately become current in this Circuit.

I have the very highest respect for Judge Hand. To sit with him is an inestimable privilege, a constant source of education. Consequently, I usually suspect my own tentative opinions, when they vary from his. But on this one subject I find myself recurrently and unregenerately at odds with him.

My colleagues' rule is to overlook errors in admitting evidence, when …  the record, in their opinion, shows that defendant is guilty. … The rule here is that, even if that evidence was such that it may well have affected the jury's verdict, yet it is no ground for reversal if my colleagues believe the defendant guilty.

In so doing, the judges convert themselves into a jury. By thus substituting themselves for the legally authorized jury, I think they exercise a power beyond their legitimate -- their constitutional -- scope. Without warrant in statute or Constitution, the judges find the facts. I cannot believe that such a procedure satisfies the constitutional requirement of a jury trial. The defendant has been convicted by the judges, not by a jury. He has been unconstitutionally deprived, I think, of the privilege of a trial by jury fully as much as if, in the first instance, he had been compelled to go to trial before a juryless court.

A jury trial unquestionably has defects. At best, such a trial … is an imperfect, all-too-human, instrument for ascertaining the true facts of a case As Borchard reported several years ago and as current discussion in the press of the recent Campbell case dramatically reminds us, occasionally it is discovered that an innocent man, after a jury trial, has been convicted and sent to jail or put to death by the government. No one can doubt that there have been undiscovered instances (no one knows how many) of convictions of the innocent.

Unfortunately, some tragedies of that kind are bound to occur. I, for one, do not care to accept responsibility for any such miscarriage of justice which, with reasonable precautions, could have been avoided.

Although usually I feel constrained to concur in a ruling with which I disagree if it has been endorsed in previous decisions by a majority of this court, I think that, in respect of this "Second Circuit doctrine" of harmless error, because of what may be its consequences, I may appropriately continue to dissent.
And continue to dissent he did. In Antonelli, he reminded his colleagues that they had already been reversed by the Supreme Court because of their careless application of the harmless error concept.
I think it plain, then, that, because of their unique conception of "harmless error" and their interpretation of a "strong case", my colleagues do not follow the [Supreme Court] rule in Berger's case, but, remaining renitent, render it mere lip service: Just as they refuse to reverse for erroneously admitted evidence when, despite conflicting testimony, they believe a defendant guilty, so they do likewise as to counsel's improper remarks in a criminal suit. 
Strangely enough, my colleagues have taken a different position as to misconduct of counsel in civil litigation. In Brown v. Walter … the lawyer for the successful plaintiff, in an automobile collision case, injected into the record the fact that the nominal defendant was insured by an insurance company. Although the trial judge cautioned the jury not to heed that fact this court reversed, citing cases … to effect that "no caution would serve to cure" such an error. Surely, if that rule is to be invoked to protect the pocket-book of an insurance company, it should be invoked in the instant case to protect natural persons from being sent to jail unjustly. 
If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice. Law suits, do what we will, are hazardous: A missing witness, a lost document -- these and numerous other fortuitous factors may result in a man's losing his life, liberty or property unjustly. When the government puts a citizen to the hazards of a criminal jury trial, a government attorney should not be allowed to increase those hazards unfairly. When, as here, such an attorney has done so, I, as a government servant, am unwilling to approve the result. I think it is our duty to give these defendants another trial.
Frank went on to warn that the Second Circuit Court's tacit acceptance of prosecutorial misconduct would lead to injustice, not just in the case at hand, but in untold cases to come.
This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. 
If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, "Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of `disapproved' remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. 
The deprecatory words we use in our opinions on such occasions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary. 
On the other hand, a reversal in a case like this might well serve as a deterrent: If it became known that misconduct of a United States Attorney had caused the public the expense of a new trial, his resultant unpopularity might tend to make him subsequently live up to professional standards of courtroom decency. If this court really meant business about such behavior as that of government counsel in the case at bar, if it actually considered such behavior reprehensible, it would, at a minimum, announce that if, in any future case any government lawyer should thus conduct himself, it would deprive him of the right to practice in this court and would recommend that he be removed from his office as a representative of our government. 
Lawyers may talk rhapsodically of JUSTICE. They may, in Bar Association meetings, hymn the pre-eminent virtues of "our Lady of the Common Law," prostrate themselves devotedly before the miracle of the common law's protection of human liberties. But, in the last analysis, there is only one practical way to test puddings: If, again and again in concrete instances, courts unnecessarily take the chance of having innocent men sent to jail or put to death by the government because they have been found guilty by juries persuaded by unfair appeals to improper prejudices, then the praises of our legal system will be but beautiful verbal garlands concealing ugly practices we have not the courage, or have grown too callous, to contemplate.

Epilogue to Chapter 0.0

Learned Hand and the others were less moved by Jerome Frank's writing than I am. Learned and the others continued to apply the harmless error doctrine with all due speed. Only on occasion were they called to the carpet for their decisions.

In 1946, the Supreme Court overturned the their application of harmless error in Kotteakos, and again in Bihn, and again in Bollenbach.

In 1949, the Supremes overturned them for the same reason in Krulewitch.

Also in 1949, Jerome Frank published his book Courts on Trial: Myth and Reality in American Justice. Frank dedicated that book "To Learned Hand -- Our Wisest Judge."

In 1957, Jerome Frank completed work on his last book. He titled it Not Guilty. Following in the footsteps of Edwin Borchard, Jerome and his daughter Barbara documented 36 cases of innocent people wrongfully convicted. One of those cases was that of Bertram Campbell.

Jerome Frank then died. In the forward to their book, Barbara Frank wrote:
On January 11, 1957, we made the last change in the final draft of the manuscript. I went to sleep that night with a happy feeling of accomplishment. I like to think that he did too.
At noon the following day an ambulance carried my father to the hospital. His generous heart, which in his sixty-seven years had rarely failed another human being, was finally neglecting him. At four-fifty the next morning, on January 13, he died, painlessly, in his sleep. It is too soon for me to say any more than this: I am proud to be his daughter and to have shared this book with him.
In a perverted sense, Learned Hand prevailed in his legal disagreement with Jerome Frank. The concept of "harmless error" runs amok today. A search in Goggle Scholar for "harmless error" and "is affirmed" returns 19,500 hits. A similar search for "is reversed" yields fewer than half as many.

On the other hand, Learned Hand was woefully wrong when he argued that "our dangers do not lie in too little tenderness to the accused." Assuming either Professor Bruce Spencer's judge-jury analysis (Chapter 10.6) or my own judge-jury analysis (Chapter 11.1) is correct and broadly applicable, we now have a quarter million of our fellow Americans wrongfully incarcerated.

For his efforts to prevent wrongful convictions, I dedicate this book to Jerome New Frank, Our Wisest Judge.

For his inability to conceive that our judicial system might consume the innocent as well as the guilty, I award Billings Learned Hand the eponymous sub-title for this Chapter 0.0.