But a person I encountered recently took these categories to a whole new level.
A few days ago, I was skimming an academic reading list, when I found the following post:
From: Deborah Frisch dfrisch@pobox.com
Subject: [Jdm-society] brady v. maryland (1963)/ u.s. v. bagley (1985)/kyles v. whitley (1995)
Date: 01/30/2009 12:43 PM
In a 2000 opinion written by three judges in the United States
Court of Appeals for the REDACT Circuit, the following statements
appear: (18 ) The prosecution’s suppression of evidence favorable
to the accused violates due process when the evidence is material
to guilt or to punishment. See Brady v. Maryland, 373 U.S. 83, 87
(1963). Evidence is material “only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985). “[A] constitutional error occurs, and the
conviction must be reversed, only if the evidence is material in the
sense that its suppression undermines confidence in the outcome
of the trial.” Id. At 678. (27) The question is not whether the verdict
would more likely than not have been different, but whether the
defendant received a fair trial, understood as a trial resulting in
a verdict worthy of confidence. See Kyles v. Whitley,
514 U.S. 419,434 (1995).
I have spent a lot of time thinking about issues of probability
and confidence and I cannot wrap my mind around the distinction
made in Section 27. In fact, it seems to me that the entire point
of Section 18 to show the exact opposite of what is alleged in
Section 27. I suppose it is possible that I am missing something,
which is why I’m asking you if it is possible to make sense of
Statement 27.
Well, anyone with a bit of sense knows to check the original court decision.
Frisch thinks she's "redacted" the court case, but a quick search of Lexis
Nexus easily supplied Frisch's "mystery" opinion: Downs v. Hoyt, 232
F3d 1031 (2000).
A quick scan of the decision made Frisch's mistake obvious; I posted
the diagnosis to the Mailing List:
In the law, as in life, context matters.
The short answer to poster's query is that she's pulled the
two paragraphs out of context. They refer to two different
legal tests: 1) the Brady test and 2) a test for establishing
ineffectiveness of counsel.
More specifically, poster's question concerns the Ninth Circuit
Court's opinion in Downs v. Hoyt, 232 F.3d 1031 (2000). If we
restore the context, we see that poster's question is a result
of a less than careful reading (emphases mine in what follows):
"(15) Downs raises nine claims: (1) that the state's failure
to disclose certain handwritten investigatory notes violated
its obligations __under Brady__....(3) that prosecutor committed
misconduct by reading excluded portions of Danny's medical
records during the state's closing argument and that trial
counsel's failure to move for a mistrial denied Downs
effective assistance of counsel....
"(16) I. FAILURE TO PROVIDE MATERIAL, EXCULPATORY EVIDENCE
"(17) Downs first
contends that the state deprived her of evidence helpful to
her defense....
"(18 ) The prosecution's suppression of
evidence favorable to the accused violates due process when
the evidence is material to guilt or to punishment. See Brady
v. Maryland, 373 U.S. 83, 87 (1963). Evidence is material
"only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v.
Bagley, 473 U.S. 667, 682 (1985). "[A] constitutional error
occurs, and the conviction must be reversed, only if the
evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial." Id.
at 678....
"(24) III. PROSECUTOR'S READING OF EXCLUDED AND MISLEADING
DOCUMENTS INTO THE RECORD
"(25) As her third claim, Downs contends that the prosecutor
acted improperly during closing argument when he read a
statement by Danny Downs identifying his mother as the
shooter. The state had earlier moved successfully to exclude
portions of the medical reports in which that statement appeared.
"(27) Downs further contends that trial counsel should have
moved for a mistrial after the prosecutor's statement. The
state court found that trial counsel, after conferring with
Downs, made a valid tactical judgment not to seek a mistrial
and that the prosecutor's action was not in fact ground for a
mistrial. __To establish ineffective assistance of counsel,__
a defendant must show both that counsel's performance fell below
an objective standard of reasonableness and that the deficient
performance prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 691 (1984). The second, or prejudice prong, requires
a showing that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. Id. at 694. The question is not
whether the verdict would more likely than not have been
different, but whether the defendant received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995)."
Such parsing-failures, of course, are common among legal
laypersons. That's one reason why it's prudent to leave legal
documents to the experts.
To put poster's puzzle in decision-theoretic terms, poster's
error is akin to an undergraduate puzzled over how "If p,
then q" and "If r, then not-q" can be compatible. If the
consequents were categorically asserted, they'd indeed be
incompatible; but once we notice their conditional
status, they're compatible.
I hope this helps.
Well, no good deed goes unpunished, as they say. Within minutes, Ms. Frisch emailed me with a line of rubbish:
"Thanks for playing, you arrogant, clueless fuck!"
Frisch then compounded her unprofessionalism with incompetence. She wrote (and blogged) the following insubstantial rebuttal.
It's worth dwelling on how she trumpets her legal ignorance:
Deborah Frisch wrote:
Terry Hauck: Such parsing-failures, of course, are common among legal laypersons. That's one reason why it's prudent to leave legal documents to the experts.
The opinion by Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges,
and William W Schwarzer, Senior District Judge is parsed into eight
sections.
http://www.altlaw.org/v1/cases/1366823
I.FAILURE TO PROVIDE MATERIAL, EXCULPATORY EVIDENCE
II. DESTRUCTION OF DEPUTY POND'S HANDWRITTEN NOTES
III. PROSECUTOR'S READING OF EXCLUDED AND MISLEADING DOCUMENTS INTO THE
RECORD
IV. PROSECUTOR'S REFERENCE TO DEVIANT SOCIOPATH DIAGNOSIS DURING CROSS
EXAMINATION
V. USE OF CHRISTIE'S TESTIMONY
VI. FAILURE TO CALL DR. VERGAMINI
VII. FAILURE TO USE STATE'S FINGERPRINT REPORT
VIII. DOWNS'S REMAINING CLAIMS
Mr. Hauck seems to think the random parsing of the issues generated by
Kozinski, Kleinfeld and Schwarzer is sacred and should not be altered.
Mr. Hauck agrees with Kozinski, Kleinfeld and Schwarzer that "failure
to provide material, exculpatory evidence" and "failure to call dr.
vergamini" are appropriately viewed as contrasting categories at the
same level of analysis.
I reply:
First, Frisch fails to focus on my actual argument. For some reason, she's riveted yourself to a bit of obiter dicta. Law students quickly learn the difference between
a court "opinion" and a judge's "asides." Since Frisch lacks legal training--
and since she is letting her emotions skew her reasoning skills
(such as they are)--I'm not surprised by her failure of focus.
Next, her shoddy "paraphrase" is a clanging non-sequitur. Fruitful
reading of legal documents requires practice--years of it. Otherwise,
the document will, as Frisch has admitted, look like a "random parsing."
It's not "random"--in fact, the logic is obvious to anyone with the training.
Frisch lacks that training; hence her inability to "parse" the opinion.
DF: I believe that many of the categories 2-8 are more naturally viewed as
subcategories of category 1, which is why I chose to combine legal
precedents cited in different "categories."
I reply:
This is precisely why laypersons perform so poorly when they opt to
represent themselves in court. What seems "natural" is
irrelevant. What matters are the standards of legal scholarship
and exposition. Frisch is blithefully ignorant of these standards.
TH: The short answer to poster's query is that she's pulled the two
paragraphs out of context. They refer to two different
legal tests: 1) the Brady test and 2) a test for establishing
ineffectiveness of counsel.
Similarly, Mr. Hauck seems to think it is self-evident that "Brady test"
and "test for establishing ineffectiveness of counsel" are mutually
exclusive. I do not.
I reply:
Again, Frisch exposes her ignorance. What she "thinks" (and I use this phrase very loosely here) is flatly wrong.
To get a glimpse of the pathology of the eight category parsing chosen
by Kozinski, Kleinfeld and Schwarzer as well as the pathology of their
thinking in general regarding this case, consider this passage from
Section V.
I reply:
What Frisch dubs a "pathology" is what sane, educated people call "reality"--the reality of How the Law Works. Frisch abyssmally fails to grasp this--and is too arrogant to realize how laughably poor her legal reasoning is here.
The remainder of Frisch's ramblings are immaterial.
My original argument stands. The two passages you originally
quoted are not in contradiction. They only seem that way because
you've failed to grasp the context. And once this context is taken
into account--the two passages are attached to different legal tests
--then any intelligent person will see your error.
It seems that Frisch's own colleagues obviously agree with my estimate, since they
refused to circulate the text of her irrational "rebuttal" on the mailing list.
Thank heavens for small favors.
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