Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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I think Avery's prosecution was corrupt enough to be worth vacating on police misconduct alone.[1] However, implicit in your comment is the premise that process is more important than outcome. While I fully agree with that (as a lawyer), I think ordinary peoples' view of the justice system is a bit different.

Watch the beginning of the 1983 Michael Douglas movie, "Star Chamber." The first scenes show two men getting away with the rape and murder of a young boy, because the damning piece of evidence (a bloody shoe), was found in their van pursuant to a search in violation of the 4th amendment. The audience is supposed to be outraged by this failure of justice.

Surely you've heard the consternation about criminals "getting off on a technicality." A lot of people view procedural protections as just that: technicalities. It's people with that mindset reacting so negatively to this documentary. To them, Avery's actual guilt or innocence is the important thing. The process is just technicalities.

The same mindset makes it easy to justify police misconduct, and I imagine it was strongly at work with Avery's jury. Once you admit the evidence excluded in the documentary, such as Avery's prior conduct, it becomes quite reasonable to conclude that Avery is actually guilty. At the same time, with the "planted blood" theory seemingly debunked by the FBI test, the only blatantly obvious police misconduct you're left with is the planted key. If you view outcome as being more important than process, it's very easy to think of finding Avery innocent based on the planted key as simply letting him off on a "technicality."

[1] Not to mention the pervasive logical and legal fallacies in Ken Kratz's statements, which left me yelling at the TV.

Did you see the documentary? The FBI test and related testimony was bullshit. This is only the second time an EDTA test was done so we have to worry about the accuracy of it and more importantly, logic says:

1. If EDTA is found in the blood, blood definitely came from vial. 2. If EDTA is not found in the blood, no conclusion can be made. It is possible that test is not capable of testing for EDTA.

I binge-watched the whole thing over a weekend. I don't think your logic follows at all. If the test isn't reliable, it may well falsely indicate EDTA is present, even if the blood didn't come from the vial.

Leaving aside the FBI test, the "hole in the vial" theory has some holes in it, namely that a nurse was apparently ready to testify that the hole was how she filled the vial, and doing so that way was not uncommon: http://www.businessinsider.com/steven-avery-blood-vial-test-....

> I don't think your logic follows at all. If the test isn't reliable, it may well falsely indicate EDTA is present, even if the blood didn't come from the vial.

No, it's a _detection_ test. Suppose it can detect EDTA above a certain threshold only. So it would be able say if EDTA is present _above_ that threshold; but its inability to detect would not implay that there is no EDTA, but just that there's insufficient EDTA to be detected. Which could be for a variety of reasons: evaporation? Exposure to UV light?

My understanding is that we often test for a specific subcomponent in detection tests, since testing for the entirety of what you are looking for is not feasible. Unfortunately that can leads to false positives by correctly detecting the subcomponent, but it may have been provided from a different source.

It's trivial to find examples of this, but I don't know enough about the EDTA test to know how well they, or this reasoning, applies.

Fair enough point. If the test isn't reliable, then no conclusions (positive or negative) can be drawn.

How about his testimony? Even though nothing about 'police integrity' was mentioned in the EDTA test request, he talks about it in his testimony. And he assures that the blood didn't come from the vial for the samples he DID NOT even test. If that is not a proof of bias, I don't know what is.

[I never mentioned the hole in the vial in my comment. I looked in to it and found that it is absolutely possible that the vial has a hole in it. ]

The defense expert tested that the test can only definitely say that EDTA is present, not that it is absent.

Due to the rushed nature of the test and the fact that it has only been used once before, there are definitely questions about the exact procedure used and if that could invalidate the results. There is also the question of the detection limits of the test. Neither of these things were made available at the time of the trial.

Additionally, there were multiple tests performed on blood from the vial. One of the tests came up negative. I do not believe that this was brought up at trial, and I think it should have served to prevent the tests from being presented.

In addition to the tests itself there are two huge problems with the blood.

1) The evidence seal is broken. This is a huge procedural mistake. Maybe the hole in the top is supposed to be there, maybe it isn't. Maybe it was re-used to extract blood from the vial.

2) The FBI tech that testified has been found to have misconstrued evidence in other cases. His statement of certainty that the untested vials did not contain EDTA is either an outright lie or complete incompetence.

I read that the FBI test actually tested the blood from the vial (blind control group) as well as some of the samples from the car. Out of 4 identical samples from the vial 3 tested positive for EDTA, and one did not.

I agree the FBI slide was shockingly dishonest, I was stunned at how blatant their false logic was.

I have been meaning to ask you. What's the rationale behind allowing prosecution to have two different theories for two different trials for the same crime? How was this precedent set? Do you personally agree with it?

As far as I'm aware the Supreme Court has not specifically considered the issue of whether inconsistent theories of prosecution in two different trials violates due process. The federal appellate courts have been pretty negative on the practice. See 653 F.3d 426 (6th Cir. 2011).[1]

That being said, criminal trials are inherently statistical and that admits some level of inconsistency. If the standard of conviction is say 95% certainty, the evidence might prove a 95% probability of guilt, while still leaving a range of facts undefined (e.g. where exactly was Halbach killed?) In fact, it's possible for the evidence to establish a 95% probability of guilt for two different people, even when only one could be guilty.

Thus, the focus of courts reviewing these sorts of cases seems to be not on whether the theories are inconsistent, but on the prosecutor's ethical duty to submit only evidence they believe to be true. In the Stumpf case, the prosecutor presented in Wesley's trial a statement from a jail-house informant that Wesley admitted to being the one to pull the trigger. He did not present that evidence at Stumpf's plea hearing, and in a subsequent proceeding with Stumpf, argued that the jail-house witness was not credible. The problem was not that the two theories were inconsistent, but that in either the trial or the later hearing, the prosecutor must have advanced evidence he thought to be false.

[1] In that case, there were two defendants accused of participating in the murder, but it was unclear who actually "pulled the trigger." One, Stumpf, pled guilty to aggravated murder, and in his plea hearing the state argued he was the primary shooter. He was sentenced to death. In the trial of the other, Wesley, the state argued that he was the primary shooter. He was sentenced to life. Stumpf filed a habeas petition in federal court. The Supreme Court held that the inconsistent theories did not require vacating Stumpf's guilty plea, because under Ohio law an accomplice who did not actually pull the trigger could be guilty of aggravated murder. However, it remanded to the Sixth Circuit to determine whether the inconsistent theories necessitated re-sentencing. On remand, the Sixth Circuit held that the inconsistent theories did violate Stumpf's due process rights and granted his habeas petition, unless Ohio granted him a re-sentencing.

Thank you so much for writing that up, that surely makes a lot of sense.

What is your opinion on Ken? The way he organized press conference before Avery's trial? The way he proposed two wildly different theories in two trials? Do you think it was right on Ken's part to do that?

What is your opinion on Dean Strang/Jerry Buting? Do you think they could have done more to establish reasonable doubt?

> What is your opinion on Ken?

Chief Judge McKee's concurrence in this case summarizes how I feel about such tactics: http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?...:

> Bribery has thus undergone a metamorphosis that has transformed it from a prosecutorial theory that “just doesn’t have any place in this,” to the lynchpin of the Government’s argument on appeal. I understand why the Government adopted this adversarial bait and switch after Skilling. However, the argument could have – and should have – been made in a less disingenuous and more candid manner.

> Although I agree with, and fully join the analysis in the Per Curiam opinion of my colleagues, I feel compelled to write separately to ensure that the “now you see it, now you don’t” approach to advocacy adopted by the Government in this case does not pass without comment.

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