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Thursday, August 23, 2018

I WAS RIGHT!!!!

This story reveals that, as I suspected, one holdout juror blocked the Manafort jury from finding him guilty on all eighteen counts.

21 comments:

Anonymous said...

The Washington Post has an article on it, this morning.

Anonymous said...

There was no mention anywhere the reasons for the holdout. What in the evidence or testimony has fallen short?

MS said...

Anonymous,

(MS, Part 1)

The temptation is to assume that the hold-out was a Trump supporter. The report that I read on CNN.com does not assert that she was, however. And the female juror who disclosed this information indicated that she was, herself, a Trump supporter. but found the evidence (mostly documentary, since they apparently disregarded Gates’ testimony due to his plea bargain) overwhelmingly in favor of guilt. Try as they could, the other 11 jurors could not persuade the hold-out to change her vote on the 10 charges that they deadlocked on.

So, and I say this half in jest, perhaps the hold-out had been, or was, a philosophy major. (Hopefully not both a philosophy major and a Trump supporter.) As disciplines, philosophy and law intersect in many fascinating ways. Before I went to law school, I had been a graduate student in philosophy. This preparation was, in some ways, an asset in law school. As a teaching fellow, I had taught symbolic logic and understood the rigors of a syllogism. (Contrary to popular opinion, there is a lot of logical analysis in law.) In some respects, however, my background in philosophy was a liability. My answers on law exams tended to be overlong (as, perhaps, demonstrated by this post), and, as a result, I often found it difficult to complete the exams within the time limitations. More significantly, there were several concepts in law that I had difficulty accommodating. The “reasonable man” standard in torts (the standard by which whether a party has been negligent is determined); the concepts of proximate cause and foreseeability. Most troublesome, however, was the standard that the prosecution must meet of proving guilt “beyond a reasonable doubt. Now, I had read both Descartes and Hume. (I always found it amusing that Descartes starts out doubting everything, convinces himself that, at least, he knows that he is a thinking entity, and then proceeds to prove the existence of God.) For them, and particularly Hume, what constitutes “reasonable doubt” is not what jurors are told. A judge does not tell jurors, for example, that they have the right to doubt the validity of the concept of causation. Could Hume ever convict an accused of a crime, no matter how persuasive, from a common sense standpoint, the evidence was? If the standard for “beyond a reasonable doubt” were Hume’s standard, a prosecutor could never get a conviction and all defendants would be acquitted.

MS said...

(MS, Part 2)

But the jury instructions do not preclude a juror, if so inclined, from applying a standard as rigorous as Hume’s. The instruction regarding what constitutes “reasonable doubt” is, as might be expected, rather vague. Since Gates’ testimony was discounted (a natural inference, since the plea bargain suggests biased self-interest), the principal evidence relied on, according to the disclosing juror, was documentary. She indicates that Manafort’s finger-prints, i.e. his signature, were all over the documents. Manafort did not testify, and the defense did not call any witnesses. The only evidence confirming that the signature was his, therefore, had to come from witnesses who testified that they knew his signature and/or an expert who testified, based on exemplars, that the signature was his. But even in the absence of contradicting testimony by the defense, jurors are not required to believe the prosecution’s witnesses, even though they testify under oath. They are entitled to disbelieve all testimony. So, the hold-out juror, if a fan of Hume, for example, could conclude that she was not persuaded that the signature was Manafort’s – that the witnesses who testified that it was could be mistaken. If you believe in the persuasiveness of Hume’s analysis, can you say that her disbelief is “unreasonable”? (I once had a civil case that involved allegations that the signature on a mortgage was forged. The woman whose signature it purportedly was insisted that on the day in question she was not in the city where the mortgage had been executed – and she had an alibi confirming this. The notary who notarized the signature insisted that, as required by law, she had inspected the signer’s driver’s license, the photograph on the license was identical to the visage of the person that stood in front of her, and the signatures matched. An expert testified that he was 95% positive that the signature was that of the woman who denied it was hers. To this day, I do not know who signed that mortgage.)

That being said, I believe that the hold-out was probably a Trump supporter.

Anonymous said...

MS, I would remind that our esteemed blog leader wrote this only a day or so ago:

"What are we to make of yesterday’s events? I am going to resist the natural temptation of the left-leaning public intellectual to seek some deep and of course contrarian interpretation."

MS said...

Addendum

Another way that the prosecution could have proved that the signature was Manafort’s was, of course, to have a witness testify that s/he was present went the documents were signed, and Manafort, whom the witness knew, signed them. If the witness was Gates, the hold-out juror could have discounted the testimony and concluded he was lying because of his plea bargain. If the witness was not Gates, the juror could still believe that the witness was mistaken out of bias, because she was a Trump supporter, or, if an ardent skeptic, believe that it could have been a Manafort imposter.

If this is the case, why did the hold-out agree to convict on 8 of the counts, and hold-out on the other 10? I am obviously speculating here, but if she were an ardent Trump supporter, then she could rationalize her vote by saying she at least made a symbolic stand on behalf of Trump’s campaign manager by rejecting a conviction on 10 of the counts. The pressures of jury deliberation can be intense. Jurors want to finish the deliberation and get on with their lives. She was satisfied that she had made her point by standing fast on the 10 counts, and conceding on the other 8.

Anonymous said...

MS:
It is interesting to me that we really do expect jurors to be non-political and rational/objective in an 18th century Enlightenment sense of rational and to arrive at their verdicts by simply going where the law takes them. Jurors are supposed to have a common sense understanding of the law—as if common sense is all one needs to understand a law and to decide in accordance with it. It’s as if jurors are simply to understand and follow instructions qua instructions. And, of course, jurors are not supposed to judge the law in making their decisions. Maybe we can’t do better than this, but it still seems pretty naïve and amateurish. Appeals to common sense don’t cut the mustard in philosophy or science, but they seem to be the standard in law (insofar as juries are concerned anyway). Perhaps a better educated citizenry would have (i.e., make) better laws, and the whole process built on laws would be less of a jury-rig than it is. (Yes, I know that term, jury-rig, has no connection to law and is from sailors’ jargon, but it seems appropriate here.) It’s also interesting that we don’t expect Supreme Court Justices to be non-political. I think that there are good reasons for being suspicious—and even cynical—about sanctification of the law. So much of it is arbitrary. My younger son is a lawyer and had jury duty in a murder trial this past January, in New York City. The jury followed the (NY) law and found the defendant guilty. I think the guy got life. If the crime had been committed in, say, Florida, the accused would have been found not guilty (according to my son) because of the stand-your-ground law there. Justice seems a hodge-podge.

MS said...

Anonymous (4?),

Personally, I do not believe that it is humanly possible to devise a better system of adjudicating guilt/innocence than the jury system. Having observed judges make decisions in which a defendant has waived the right to a jury, I would not support a proposal to eliminate juries (and, constitutionally, they cannot be eliminated). Police officers who have been charged with using excessive force often waive the right to a jury trial (the defendant chooses whether to have a jury or not) because, depending on the judge, they realize that judges, many of whom are former prosecutors, favor the police. (I am really surprised that your son, an attorney, was allowed to serve as a juror in a criminal case. Generally, either the prosecution or the defense attorney would use a peremptory challenge to prevent an attorney from serving on a jury, out of concern that the jurors will defer to the expertise of the attorney. I have been called to serve on juries numerous times, and my service has always been objected to by one of the attorneys.)

There have been various proposals to modify the jury system, by, for example, increasing the number of jurors. But this increases the likelihood of hung juries. Restrictions on the qualifications of jurors, for example, requiring a college education, would be unconstitutional and, I believe, probably bias jurors against uneducated defendants. Selecting jurors randomly from the voter rolls seems to me the best system of assuring the best possible “rational” result that is humanly possible. And a society cannot survive without some system of adjudicating the guilt of individuals who have been accused of committing a crime, as well as adjudicating noncriminal disputes. (Query for Prof. Wolff – is this position contrary to that of political anarchism?)

Finally, my suggestion that the hold-out juror may have been a student of Hume, was, of course, made in half jest. Most people have not heard of, let alone read, Hume. If you were to approach Mr. John Q Public on the street and tell him that there is a professor at Harvard, who has a Ph.D., and s/he has opined that there is no logical reason to believe in causation, that just because the sun has “risen” in the East on every prior day of your life, it does not mean that the sun will rise in the East tomorrow, the interviewee would most likely say something to the effect that that professor is nuts and I’m not sending my child to Harvard if that’s what they teach there. Most jurors have what would be regarded as a common sense understanding of “beyond a reasonable doubt.” Hence, the juror who admitted that she was a Trump supporter, but nonetheless found that the evidence in support of Manifort’s conviction was overwhelming. This is also why I believe that the hold-out juror was probably a Trump supporter who could not overcome her bias. (I’m sorry if my opinion appears to be a “contrarian interpretation,” but I was attempting to address a prior commentor’s question about the meaning of the verdict. and I do not believe that Prof. Wolff’s intention was to stifle discussion among his readers.)

Anonymous said...

MS:

I'm still suspicious of law and the legal system in general, even though (like you) I can't imagine how we could devise something much better, let alone perfect. I'd never say, waxing more metaphysical, that life isn't worth living because everybody dies. We have what we have and have to make the best of it--but law is still riddled with injustices and absurdities, and I don't think it's sacrosanct. I'm wary of it. (I think the same way about government--and especially of the police.) I've several times read a book about "Crime and Punishment in 18th Century England"--the heyday of the "Bloody Code," and have always been much affected by that largely inhumane history that benefited a minority of the population at the expense of almost everybody else. As far as jury duty goes, my son is not only an attorney, he's also a philosophy major. That didn't keep him off the jury, either. (He told me that other Sullivan and Cromwell attorneys have had jury duty, and he didn't expect to be excused. Etc. So, there's some history of their being in the same boat as the rest of us when duty calls.)

David Palmeter said...

MS,

I think Hume could easily get a conviction with the “beyond a reasonable doubt” standard. The Key word is “reasonable.” Hume was a moderate skeptic, not a Pyrrhnian skeptic. He conceded that he believed in causation even though he could not prove that the sun would rise tomorrow logically or empirically (because tomorrow isn’t here yet.) So why does he believe it? Constant conjunction. When we consistently see something happening again and again, we can’t help but expect this pattern to continue. That’s how humans are, according to Hume. He notes that we cannot live in the world without doing so. He might be said to have anticipated Darwin--those who believe that just because everyone else who has jumped off the roof of a skyscraper has been killed is no reason to believe they will be killed, have taken themselves out of the gene pool.

As to lawyers on juries--it happens in Washington, DC all the time in the local Superior Court. If lawyers were automatically excluded here the list of potential jurors would be greatly reduced. There’ve even been cases of Superior Court judges serving on Superior Court juries--although this is rare enough that when it happens it usually makes the local newspaper.

MS said...

I appreciate your cynicism. I am optimistic that Martin Luther King was correct when he observed that, "The arc of the moral universe is long, but it bends towards justice." And I don't believe that there needs to exist a supreme moral deity in order for this to come to pass. The arc may not bend towards an ultimate utopia, but I believe the social conditions in the United States, yes, despite all its deficiencies, are demonstrably better than the conditions were in 17th century England.

MS said...

David Palmeter,

Thank you for your comment. This is actually, I believe, a very complicated question. I am not responding just to be pedantic. I think it is an interesting issue. – Would Hume, given his views on the nature of causation, be willing to convict somebody, for perhaps murder, with the consequence of a long prison term for the defendant, or even death. Prof. Wolff, who knows more about Hume than I will ever know, may want to weight in here. I am looking at the chapter on Hume in my copy of Bertrand Russell’s The History of Western Philosophy. (Russell may not be the best Hume authority from Prof. Wolff’s standpoint, but, although I also have my copy of Hume’s Treatise of Human Nature and his Enquiry Concerning the Principles of Morals available, but to find the precise passages that apply would require more time than I presently have available. So, I will use Russell as a shortcut.) Russell states, pp. 666-667:

He [Hume] contends, over and over again, that the frequent conjunction of A and B gives no reason for expecting them to be conjoined in the future, but is merely a cause of this expectation. That is to say: Experience of frequent conjunction is frequently conjoined with a habit of association. But, if the objective part of Hume’s doctrine is accepted, the fact that, in the past, associations have been frequently formed in such circumstances, is no reason for supposing that they will continue, or that new ones will be formed in similar circumstances. The fact is that, where psychology is concerned, Hume allows himself to believe in causation in a sense which, in general, he condemns. Let us take an illustration. I see an apple, and expect that, if I eat it, I shall experience a certain kind of taste. According to Hume, there is no reason why I should experience this taste: the law of habit explains the existence of my expectation, but does not justify it. But the law of habit is itself a causal law. Therefore if we take Hume seriously we must say: Although in the past the sight of an apple has been conjoined with expectation of a certain kind of taste, there is no reason why it should continue to be so conjoined; perhaps the next time I see an apple, I shall expect it to taste like roast beef. You may, at the moment, think this unlikely; but that is no reason for expecting that you will think it unlikely five minutes hence. If Hume’s objective doctrine is right, we have no better reason for expectations in psychology than in the physical world. Hume’s theory might be caricatured as follows: “The proposition ‘A causes B’ means ‘the impression of A causes the idea of B.’” As a definition, this is not a happy effort.


As I understand Russell’s explanation of Hume’s views regarding causation, the belief in causation reflects a fact about human psychology, not a fact about the world. If I am correct in this interpretation, if Hume were true to his philosophy, could he convict a person for murder, or prosecute a person for murder (or any other crime) – with all of the potential penalties for the accused that a conviction would entail - where, to do so, much of the evidence would have to be interpreted as reflecting reality, not simply the psychological states of the witnesses who testified?

I will defer to Prof. Wolff on this question (if he has the time to address it). If I am all wet in my understanding, there is no person I would more rather hear it from.

MS said...

Addendum

My apologies, I need to make a clarification. Arguably, if there were a reliable eyewitness to a crime, since the testimony would be about the past, Hume might not have any difficulty in convicting the accused. However, most criminal cases do not involve eyewitnesses of the actual crime. They involve circumstantial evidence in the absence of eyewitnesses. In such cases, the jurors are being asked to predict what happened in the past based on the historical conjunctions of similar events. I should think that in such cases involving circumstantial evidence, if Hume were true to his philosophy, he would have difficulty in ruling in favor of a conviction “beyond a reasonable doubt.”

Anonymous said...

MS: One of the occasional contributors to this bog is a Russell and British Empiricism scholar. But he's on the other side of the world; maybe he'll chime in later on this.

Anonymous said...

MS: I meant blog. Bog was a typo, not a Freudian slip.

MS said...

Thank goodness.

I would hate to think that some readers think that my commentary contribution has turned this blog into a bog!

David Palmeter said...

Before we get bogged down:

MS, I agree that Hume attributes our belief in causation to human psychology, but I believe Hume would say that this belief is itself a fact about the world. Put differently, it is a fact about the world that, whenever I have observed one billiard ball hit another, the second ball has moved; it is also fact about the world that the constant conjunction of these two events--ball one hitting ball two and ball two moving--in my experience leads me to believe that, the next time event one occurs, event two will follow. Hume doesn’t exempt himself from this human propensity. He explains where it comes from--not from logic and not from empirical evidence of a future event.

MS said...

(MS, Part 1)

David,

I do not want to get bogged down either, and I do not want to appear to be quibbling, but if the belief in causation comes, as you put it, not from logic and not from empirical evidence, then I believe your conclusion that Hume could find an accused guilty beyond a reasonable doubt is incorrect. I will leave it to Prof. Wolff to be the final arbiter (and/or the British professor that Anonymous refers to) of these issues. But I need to flesh out what I am saying a bit more, because I find this issue intellectually fascinating, both from the perspective of understanding Hume and for its implications for jurisprudence.

Regarding the billiard balls, Hume is not just saying that every time in the past when he has seen one billiard ball strike another, the result is that the second ball moves in a certain direction at a certain speed and that this constant conjunction of past experience is the psychological reason why he believes a similar interaction will occur in the future if the experiment is repeated. He is saying, first. that there is no logical reason to believe that there is a predictive relationship by virtue of his past observations. More importantly, however, I believe that he is also saying that there is no empirical basis for predicting that a similar interaction will occur in the future. He does not observe something in the interaction that constitutes a “cause” - he sees the shape of the billiard balls; he sees the color of the billiard balls; if he lifts up the billiard balls, he feels their weight. But he does not see the cause, or causes, such that, from his standpoint, he can be reasonably certain that the same interaction will occur this way in the future. And you can repeat this experiment with the billiard balls for a million years, with the same result, it does not mean that the first billiard ball causes the second billiard ball to move the way it has in the past the next time you run the experiment. Therefore, although this repeated conjunction of events is the psychological reason why he believes it will continue to occur in the future, this psychological propensity is neither logically nor empirically justified. Moreover, as Russell points out, on this view, even the belief that, from a psychological perspective, he will continue to believe that the interaction will be the same in the future is subject to question. Russell thus summarizes Hume’s view as follows (History of Western Philosophy, p. 669): “So far as the physical sciences are concerned, Hume is wholly in the right: such propositions as ‘A causes B’ are never to be accepted, and our inclination to accept them is to be explained by the laws of habit and association. These laws themselves, in their accurate form, will be elaborate statements as to nervous tissue – primarily its physiology, then its chemistry, and ultimately its physics.”

MS said...

(MS, Part 2)

If I am correct in my interpretation, these views, from Hume’s perspective, should have a devastating implication for jurisprudential decision making. Most trials, both criminal and civil, are efforts to determine what happened in the past (even if a party is seeking future relief, e.g., an injunction, whether the party is entitled to the injunction depends on proving what happened in the past). For Hume, in the absence of an eyewitness who can reliably and positively testify as to what occurred, the decision makers have to rely on circumstantial evidence to determine what occurred. This, I submit, presents a real problem for Hume. For example, let’s say there is a murder of a woman. She was alive one day, and deceased the next. No one saw what happened to her. Forensic experts determine that she died due to the administration of cyanide. The investigators find a container of cyanide in a neighbor’s home. The container is almost full, except the exact amount of cyanide is missing that would have been sufficient to kill the woman. The neighbor’s finger prints are on the container. His finger prints are also on the door leading into her house and various points within the house. The neighbor arguably had a motive for killing the woman – witnesses testify that they saw them arguing for several days prior to her death. The neighbor denies that he murdered the woman. There are no other plausible suspects. For most prosecutors, and most jurors, this would be an open and shut case of guilt beyond a reasonable doubt. But I submit, not for Hume. It may be the case that prior to the woman’s death, in several other similar cases of cyanide poisoning, under similar circumstances, the suspect whose finger prints were on the container, and all over the house, confessed to the murder. It may be the case that, in the future, involving similar circumstances, the neighbor would confess to committing the murder. But neither the past, nor the future, has a rational relationship to whether, in this instance, the conclusion that the neighbor killed the woman is true “beyond a reasonable doubt.” For Hume, the fact that past similar conjunctions of events have correctly implicated a person in the neighbor’s position, provides a psychological explanation of why most people would conclude that he was guilty in this instance, but it does not provide a rational basis for believing that, in this instance, he is the actual killer. And if this is the case, there is no rational reason for finding him guilty “beyond a reasonable doubt” and subjecting him to the penalty that the law calls for.

Moreover, Hume might be compelled to question the very forensic conclusion that it was cyanide that killed the woman. Yes, there was a residue of cyanide in her body; and yes, in the past, such residues have been sufficient to kill a person; and repeated experiments in the future may demonstrate that comparable amounts of cyanide may kill victims in the future. But that does not mean that in this instance the cyanide was the cause of her death. And as to the finger prints, the forensic experts maintain that (with the exception of identical twins), no two people in the world have the same fingerprints. The neighbor does not have an identical twin; therefore, the finger prints uniquely identify him. But, Hume would ask, have you taken the finger prints of everyone in the world to prove your hypothesis that, other than identical twins, no two people have the same finger prints? I submit that thousands of similar factual scenarios can be hypothesized – indeed, the facts in actual cases can be offered – and, if they involve circumstantial evidence requiring an inference based on the past conjunction of similar events, the same problem raised by Hume’s philosophy will be encountered.

You may say, this is ridiculous, in the fact situation that I propose it is clear beyond a reasonable doubt that the neighbor is guilty. From what is regarded as a common sense point of view, perhaps. But not, I submit, according to Hume.

David Palmeter said...

MS

Our difference seems to be not what Hume said regarding cause and effect, but what that means for Hume himself. It seems to center on the word “reasonable.”

I would emphasize that Hume does not exempt himself from assuming cause and effect based on constant conjunction. He in fact believes that if billiard ball number one hits ball number two, it will cause ball two to move. He knows there is no logical or empirical certainty, but nonetheless he acts as if there were. He has no doubt that this will occur. Why?

“The great subverter of Pyhrronism, or the excessive principles of skepticism, is action, and employment, and the occupations of common life. These principles [Pyhrronism] may flourish and triumph in the schools; where it is indeed difficult, if not impossible, to refute them. But as soon as they leave the shade, and by the presence of the real objects, which actuate our passions and sentiment, are put in opposition to the more powerful principles of our nature, they vanish like smoke, and leave the most determined skeptic in the same condition as other mortals.”

“I dine, I play a game of back-gammon I converse, and am merry with my friends; and when after three or four hour’s amusement, I wou’d return to these speculations, they appear so cold, and strain’d, and ridiculous, that I cannot find in my heart to entertain them any further.

“Here then I find myself absolutely and necessarily determin’d to live, and talk, and act like other people in the common affairs of life.”

In other words: “Nature is always too strong for principle.”

And that’s a fact.

Anonymous said...

MS:
Hume’s theory is, after all, a theory about belief—i.e., a theoretical account that explains in a very Newtonian naturalistic way what belief is. The theory itself isn’t meant to be a substitute for belief. True, for Hume, belief isn’t rational in, say, a mathematical sense, but that doesn’t mean that it’s irrational—as if one belief is just as good as any other (or no better than any other). How do you get a belief? Experiences add up, and (so to speak—in a popularized Newtonian fashion) the resultant weight is felt as more and more compelling, as the weight increases. What we might feel, or experience, as an indubitable belief is really the overwhelming weight of the experiences that somehow impinges on us. (Vectors came along later, I think, but one could anachronistically but usefully think of the psychological-epistemological weight here as a kind of vector resultant.) Hume’s theory is based on a metaphysics—a theory of reality. He seems to have thought that the Newtonian-Naturalist worldview was right insofar as it pictured things as consisting of individual atomic entities ceaselessly bumping into one another. And his philosophy seems to be a mixture of “mitigated” skepticism and this basic 17th-18th century naturalism: this is all there really is, he is saying, and here (in my philosophy) is what humanly useful sense can be made of it. I am reminded of Sellars’s manifest image/scientific image dichotomy here. In the scientific image—we’re simply not there; we’re nowhere to be found. Just atoms and the void. In the manifest image—we encounter ourselves. I know this sounds obscure, but I think I know what Sellars was getting at, and Hume, too. Whatever. For Hume it’s rational, in a practical sense of that word, to believe some things and less rational to believe others—in the latter case maybe the believer is just collapsing under the weight of his evidence much more quickly than others tend to give in before they take a position (again the naturalistic metaphor) in space and time. So, yes, a juror could come to a belief that is beyond all reasonable doubt in a practical sense, but he would not be warranted in thinking that his belief is a piece of metaphysics. (“Be a philosopher; but, amidst all your philosophy, be still a man.”) These ideas, or hints of them, are strewn all through the Treatise and the Enquiry Concerning Human Understanding, but section 6 (“Of Probability”) of the latter is “probably” as clear as Hume gets on all this; and the section is barely 3 pages long in the Nidditch’s revision of the Selby-Bigge edition. By the way, Kemp-Smith’s massive work on Hume is in print. All right, now all the people who really know their Hume can tell me that I’m wrong about him and I should commit myself (or my interpretation of him anyway) to the flames.