Patterico's Pontifications

8/15/2007

Assumes Facts Not in Evidence . . .

Filed under: Crime,General — Patterico @ 8:15 pm



From the L.A. Times blog on the Spector murder trial:

Prosecutor Alan Jackson said that if forensic expert Michael Baden came to conclusions contrary to the defense his wife was presenting on Phil Spector’s behalf, “you’d probably be sleeping on the couch for several months, right?” The courtroom dissolved into laughter. Defense lawyer Roger Rosen objected. “Sustained, it calls for speculation,” Judge Fidler deadpanned. The laughter rose to deafening proportions.

Who says a murder trial can’t be fun?

35 Responses to “Assumes Facts Not in Evidence . . .”

  1. i’m surprised the spector defense used an expert who’s married to counsel, seems like it unnecessarily creates a target. i read that dr. baden testified that he didn’t know what a “conflict of interest” was, even though it’s part of the ethics of his profession. it would be fun to hear his answer to a question like “is your wife doing anything special in the sack for you in return for this testimony?” a thorough examination of before versus during sexual practices here is warranted to determine this issue.

    from all i’ve read about him, fidler sounds like a really good judge.

    assistant devil's advocate (c4e65b)

  2. It seems a poor choice, especially for such critical opinion testimony.

    Robin Roberts (6c18fd)

  3. Its a horrible choice and it smacks of desperation.

    I GUARANTEE you that Baden has shopped his conclusions to other forensic pathologists hoping that someone else would take his place and testify to the opinion he has given. That’s why the prosecution never heard about it until Monday. They real plan of the defense was to have another examiner come in, say he’d reviewed Dr. Baden’s autopsy notes as well as the report of the LA Coroner, and had the “eureka” moment himself.

    But no other pathologist would prostitute him/herself.

    Baden’s star has fallen quite dramatically due to his ethical/legal problems back home in Pittsburg.

    He couldn’t pay me to hire him now.

    wls (aad074)

  4. What strikes me as remarkable is a wife agreeing with an opinion by her husband.

    nk (e3412b)

  5. NK,

    That would be remarkable. That’s why it was probably the other way around.

    DRJ (8b9d41)

  6. No argument from me, DRJ. She agreed with his opinion because she gave it to him. The poor guy was hopelessly impeached the minute it was revealed whom he was married to (in the eyes of married jurors at least).

    nk (e3412b)

  7. I knew that’s what you meant, NK. I was just poking fun at married couples – our marriages excepted, of course!

    DRJ (bfe07e)

  8. “Celebrity Experts”. Meh. Lee, this dude. Aaack. A few years ago L.A. County had a Chief Medical Examiner whose English was so bad you could barely understand him. He ended up with the moniker “Coroner to the Stars”! Save me.

    Ms. Judged (becd1d)

  9. Ms.Judged, Noguchi – not the brightest bulb on the Christmas tree.

    Robin Roberts (6c18fd)

  10. To wls at #3 and Patterico-

    Will the prosecution be able to make this argument in the courtroom, or will it also be considered “speculation” and not allowed.

    If I remember correctly, Beldar wrote about a malpractice verdict that was “given” to him by the doctor who told him one thing about conflict of interest but then Beldar found a videotape of the fellow contradicting himself. If Baden regularly testifies it has had to come up.

    More over, if he has EVER given an organized talk to medical professionals that qualified for medical CME credit within the last many years he had to SIGN A STATEMENT that there was no “Conflict of Interest”. The only out would be if he tried to claim that such statement is about financial conflict of interest, and there is none in the court case. That, I assume, could be argued, as a defense lawyer that wins cases probably gets paid more (by the next client) than one who loses.

    As they used to say on TV, “Book ’em, Danno”!

    MD in Philly (3d3f72)

  11. All joking aside, the lawyer who hired him is more likely to seem to have a conflict of interest than Dr. Baden. I don’t know what loyalty Dr. Baden legally owes to any one in this case other to the truth like every other witness. That his wife is the defendant’s lawyer does not truly create a “conflict of iterest” for him, only a possible bias (and in extreme cases perjury) (and not necessarily more than a hefty witness fee paid to a “professional witness”). The lawyer on the hand can certainly be questioned as to whether she excercised independent judgment on behalf of her client when she retained her husband.

    As for accusing a witness of illegal or unethical conduct either explicitly or by innuendo as a means of impeaching him, there are court rules which limit that, possibly disciplinary rules, and it’s something that should done be with great caution in any case.

    Also, I have never had a client asked if he could define “conflict of interest” but I did have one asked if he knew the “standard of care” for his profession. The question was improper. The only one required to know that was the judge who would instruct the jury.

    nk (e3412b)

  12. Sorry for the typos. I was called to do a little emergency medicine. Well … I put a BandAid on a “booboo” on somebody’s knee. 😉

    nk (e3412b)

  13. I see your point nk where “conflict of interest” typically has the sense of financial reward. I don’t know if this is part of a technical legal definition of the term or not. The humor of the prosecutor’s comment aside for a moment, I’m not sure how many marriages are healthy enough for the spouses to be opposed to each other in such a public forum, etc. Maybe such factors are called “bias” rather than “conflict of interest”.

    MD in Philly (3d3f72)

  14. MD in Philly,

    I cannot see any situation where “conflict of interest” does not presuppose a duty of loyalty to and exercise of independent judgment on behalf of someone. If a doctor recommends “Spiderman” over “Mickey Mouse” BandAids for “booboos” and it is found that he has research grants from Marvel but not from Disney it raises a question of conflict of interest but only because he has a primary duty to do what is in the best interest of his patient and not his donor. My point, here, was that Dr. Baden has a duty to tell the truth but no duty to advance anyone’s interest. That his testimony might help or hurt his wife’s client permits a question of conflict of interest only if we hold him to a duty of loyalty to the court or, say, impartiality. Which I think would be taking a witness’s obligations too far.

    In any case, it’s impossible not to make jokes about wives reflexively contradicting their husbands. Here’s a classic:

    “You are old,” said the youth, “and your jaws are too weak
    For anything tougher than suet;
    Yet you finished the goose, with the bones and the beak–
    Pray, how did you manage to do it?”

    “In my youth,” said his father, “I took to the law,
    And argued each case with my wife;
    And the muscular strength, which it gave to my jaw,
    Has lasted the rest of my life.”

    nk (e3412b)

  15. Robin:

    That’s the guy. Thanks.

    Ms. Judged (becd1d)

  16. Whatever bias or conflict of interest the defense experts may have pales beside those of the prosecution’s so-called “experts.” Defense proposed experts have the option of not being hired or called if their theories don’t support the defense theories; the prosecution’s coroner and medical examiners are County employees, and are stuck with testifying once they perform the autopsy or analyze the forensic results. Thus, as in the Spector case, they meet with one another and with the prosecutors to get their opinions in line.

    Baden certainly gets paid a considerable amount. But his future as an expert depends on maintaining his credibility. In contrast, the prosecution’s experts very careers — promotion, paychecks, and employment — depend on them toeing the prosecution line and testifying persuasively and effectively. Thus we have Lynne Herold piggishly refusing to yield even a bit in the cross-examination. (And by the end, beaming in undeserved self-satisfaction as she evaded the questions. Coroners and medical examiners who don’t sufficiently please prosecutors find themselves relegated to hidden back cubicles testing little rocks for cocaine or testifying in mind-numbing DUI cases about the breath tests.

    nosh (56a0a8)

  17. nosh-

    I’m surprised at your argument that the county coroners office/medical examiners have a bias to please the prosecuters. That suggests that the DA decides what the crime was, how it happened, and who did it, the asks the ME to fix the data for the theory.

    I assumed it was a process of collecting facts first, then have a hypothesis of who/how, and review of any specific facts or search for new information to support or cause doubt in the hypothesis. The more unassailable the government’s case the better, not fudging data so the defense can make you look like a fool.

    The defense witness needs to be credible, sure, but all they “have to do” is raise enough doubt, not provide evidence as conclusive as possible.

    nk-My point, here, was that Dr. Baden has a duty to tell the truth but no duty to advance anyone’s interest. Correct nk, but I never thought of conflict of interest in a “contract” sense but as competing motivations, which are related but not the same.

    If I take money from a drug company to give a talk, my contractual obligation is to give a talk on the given topic, and I guess promote the product to the degree that any objective person believes the evidence supports. They don’t pay a doctor to be a salesman (unless he/she is directly on their payroll). The potential motivational conflict is between being objective and truthful and wanting to be seen as helpful to the company and continue being paid.

    Baden may have no contractual obligation to do anything but “tell the truth”, but that does not mean his psyche is unaffected by the fact that his performance may impact his wife’s “success”, and that may in turn impact his own happiness.

    I’m not suggesting that the individuals involved are without integrity and subject to whims of insecurity, I’m just reflecting on how human mind and emotion work. It would also be possible that the witness has deep motivations to project himself as independent, so much so that he would purposefully (but not consciously) refuse to support the defense case as forcefully as he might otherwise.

    “The heart has its reasons, that reason knows not thereof.” Pascal*

    *That is the phrase as I remember it. My quotations search puts it, “The heart has its reasons, of which the mind knows nothing (+/- of).”

    MD in Philly (3d3f72)

  18. nk-

    A male colleague informed us that the following joke was circulating among his wife and her friends:
    “If a man says something in the forest where there is no one to hear him, is he still wrong?”

    MD in Philly (3d3f72)

  19. “Le couer a sais raisons que la raison ne connaint point”.

    I prefer “the heart has reasons that reason knows nothing of.” But as the poet’s wife who helped me translate a Byron poem told me, “The faithful wife is the good wife, but the faithful translation is the bad translation”. And are you sure it’s attributed to Pascal and not Catullus?

    And you’re trying to draw me into philosophy again, MD in Philly. I have told you before that I am a simple-minded person. Whenever I have to think beyond “what law was broken how?” I get as confused as a snake in a garden-hose factory. 😉

    nk (e3412b)

  20. nk-

    My brief search of quotes on the web said Pascal, in my recollection it is always a battle between Pascal and Descartes, and I’ve never heard of Catullus.

    Actually, I don’t think of this topic as philosophy as much as psychology/human behavior. But I can sympathize, as philosophy is simply compared to understanding human behavior.

    Now, philosophy of linguistics and translation is something I have an interesting story about that affects billions of people around the world, but rather than go on another 3 paragraphs I’ll wait to see if anyone is interested.

    The translation you have is nice, avoids the ambiguous word “mind”, and “nothing of” is less archaic than “not thereof”.

    MD in Philly (3d3f72)

  21. Now, philosophy of linguistics and translation is something I have an interesting story about that affects billions of people around the world, but rather than go on another 3 paragraphs I’ll wait to see if anyone is interested.

    Shoot.

    nk (e3412b)

  22. Thank you nk.

    I am sure the most translated piece of writing in the world is the Bible. The question of how to translate, whether a “word for word” approach or a “thought for thought” approach is a major issue. A “word for word” approach runs the risk of misunderstanding when the meaning of a colloquial phrase is lost. The “thought for thought” approach runs the risk of substituting an interpretive paraphrase (that is misleading) for the original phrasing (that did mean something else).

    A great example of this is found in translating Luke 11:11 into the language of a tribal people in the mountains of New Guinea. The verse reads, “Which of you fathers, if your child asks for a fish, will give him a snake instead?” The presumed answer is “none”, or “only the most wicked”.

    But in the language of this tribal group, when the most direct “word for word” translation is used it actually communicates, “… if your child asks for a fish (one of those tiny things you find in a puddle in the forest that aren’t worth eating), will instead give a snake (one of those big fat ones wrapped around a stick and roasted over a fire making a great feast)?”

    In effect, the verse gives the opposite meaning and makes the overall flow of the passage illogical and confusing.

    Instead, they used a more lengthy translation into the tribal language, more of a “thought for thought”, that communicated, “…if your child asks for a fish (one of those giant ones that the tribe by the ocean uses for feasts), will instead give a snake (one of those small deadly ones that bite you so you swell up and die)?”

    The second example communicates much more faithfully the intent of the original language. (Whether one finds the Bible important and trustworthy is a secondary matter, the liguistical issue is general).

    MD in Philly (3d3f72)

  23. MD,

    I had one brief linguistic anthropology course in college but it was fascinating. Your excellent comment is an example of why the topic is so fascinating.

    DRJ (bfe07e)

  24. Excellent, MD in Philly. Why on earth did you feel shy about posting it? Poetical allusion, simile and methaphor — even most common idiom — cannot be separated from the culture which created them. For example, the Pascal quote that you used earlier makes sense to us because we have carried on our ancestors’ superstition that the heart is the seat of emotion. (If it will not make sense to our descendants a thousand years from now, we will know whom to blame … lawyers of course. 😉 )

    nk (e3412b)

  25. Thanks, nk and DRJ for the feedback.

    I was “shy” about posting it because I know I can get “long winded”. The bad [or good 🙂 ] part about email is you can’t see when people’s eyes are rolling and heads are nodding.

    Another story your comment reminds me of, nk, – some years ago a young man troubled by schizophrenia and a lowish IQ asked in the midst of a church service, “Is Mr. ‘Doe’ going to hell?” The passage just read was “Woe to you lawyers…”, and Mr. “Doe” was the only lawyer in the congregation at that time. (Not to worry anyone, the passage has to do with the corruption of theology/religious regulations).

    MD in Philly (3d3f72)

  26. MD,

    I like learning and thinking but sometimes, when what we know and what we feel are at odds, feeling matters more than knowing. For instance, I think the same thing as that young man at least once each year, when the gospel at our church includes “Woe to you lawyers…”

    DRJ (bfe07e)

  27. I’ve got a great lawyer joke if you want to hear it.

    MD in Philly (3d3f72)

  28. MD,

    Absolutely. I think Patterico’s House Rules permit lawyer jokes and I like them.

    DRJ (bfe07e)

  29. A doctor, an engineer, and a lawyer were having a discussion over which profession was mentioned first in the Bible.

    The doctor spoke up, “Well, a rib was taken out of Adam’s side to make Eve near the beginning and that sounds like medicine to me!”

    The engineer then chimed in, “But that was after the creation of the heavens and the earth, and creating things sounds like engineering to me.”

    The lawyer grinned and said, “Doesn’t it say God made the heavens and the earth out of the chaos? Where do you think the chaos came from?”

    MD in Philly (3d3f72)

  30. DRJ and nk,

    was the above joke entertaining?

    MD in Philly (3d3f72)

  31. You betcha. I have been trying to come up with as good a one back at you since you posted it.

    nk (e3412b)

  32. The doctor-joke Muse is just not up to to par with the lawyer-joke Muse. Here’s the best doctor joke I know:

    A doctor dies and goes to Heaven. There’s a long line at the Pearly Gates so he walks up to Saint Peter and says, “You can’t make me wait in line, I’m a doctor”. Saint Peter says, “That makes no difference here, doctor, you take your place in line just like everyone else”.

    Just then, a very distinguished-loking man, dressed in scrubs with a stethoscope around his necks, strides by, waves “Hiya Pete”, and walks through the Pearly Gates.

    The doctor says: “Wait a minute. That was a doctor and you just let him waltz right on in.”

    Saint Peter says: “That wasn’t a doctor, that was God. He just thinks He’s a doctor.”

    nk (e3412b)

  33. MD,

    I’m sorry I didn’t reply sooner but I didn’t realize that was a joke. After all, everyone knows God made lawyers first:

    “Satan was complaining bitterly to God:

    “You made the world so that it was not fair, and you made it so that most people would have to struggle every day, fight against their innate wishes and desires, and deal with all sorts of losses, grief, disasters, and catastrophes. Yet people worship and adore you. People fight, get arrested, and cheat each other, and I get blamed, even when it is not my fault. Sure, I’m not perfect, but give me a break. Can’t you do something to make them stop blaming me?”

    And so God created lawyers.”

    Just kidding. It was a good joke and so was NK’s.

    DRJ (bfe07e)

  34. DRJ,

    I am a Dostoyevskian. (If I only knew how to spell it.) I have no difficulty believing that I am doing the Devil’s work. (Curses! Philosophy!)

    nk (e3412b)

  35. Thank you for your contributions.

    Here is a joke that lawyers and doctors can enjoy together.

    An HMO executive dies and encounters Peter at the Pearly Gates. He gives a long list of reasons why he thinks he should be admitted. Peter excuses himself for a minute, then returns and says, “OK, but only for 3 days”

    nk, the nice thing is since Dostoyevsky is a Russian name, there is more than one way to transliterate into English.
    Yes, a very powerful passage that I was introduced to in Philosophy 181 my freshman year. It is important to note, however, that Ivan, the character who recites the story, ends up in a pretty miserable state and Alyosha prevails at the end of the book.

    Indeed, this is philosophy and not psychology.

    MD in Philly (3d3f72)


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