Aggressively Defending My Clients Since 1990


On Behalf of | May 13, 2020 | Firm News

In this image by Goya, a person, asleep at his drawing table, is besieged by creatures associated in Spanish folk tradition with mystery and evil. The title of the print, emblazoned on the front of the desk, is often read as a proclamation of Goya’s adherence to the values of the Enlightenment—without Reason, evil and corruption prevail.

Wisconsin is now under an order from state government to “stay at home” to slow the spread of the new coronavirus.  It is not understatement this order has restricted the lives of people in unimaginable ways.  Gov. Tony Evers issued this order after hearing health care professionals tell him it was the only way to slow the spread of COVID-19.  In other words, there was scientific proof for the uncomfortable order issued by Gov. Evers.

Nonetheless, around May 2nd, protesters gathered near Brookfield Square to protest Gov. Evers orders despite the scientific basis for the orders.  Also, Wisconsin Republican lawmakers have asked the state Supreme Court to block the order, telling justices that Evers’ administration broke the law in its effort to stop the spread of COVID-19.  Despite the scientific evidence to support this order, Justice Rebecca Bradley viewed those powers as too broad and compared them to tyranny.  “One of the things this order does is allow people to go to prison for leaving their homes unless it’s OK with the DHS secretary,” said Bradley.

So the bottom line is members of the public and Republican lawmakers have rejected scientific evidence from health care professionals that the only way to slow the spread of COVID-19 is by the stay at home orders.

Apparently, Wisconsin is in a rush to embrace beliefs not supported by science but public opinion alone.  As exemplified by the stay at home protests, its a path that’s not just anti-scientific, but self-destructive. The scientific solution to a pressing social problem is sought to be disregarded in favor of bumper-sticker simplicities and blind faith.  It seems coronavirus and ignorance are contagious.  Wisconsin believes the scientific basis for combating COVID 19 is just so impractical.  The danger is that totalitarian governments manipulate and apply anti-intellectualism to repress political dissent.  For example, in 2019, academics Adam Waters and E.J. Dionne stated that U.S. President Donald Trump “campaigned for the presidency and continues to govern as a man who is anti-intellectual, as well as anti-fact and anti-truth.”  America hits peak anti-intellectualism: Majority of Republicans now think college is bad”. Salon.;”Is Anti-Intellectualism Ever Good for Democracy?”. Dissent.
Can unscientific beliefs be quarantined?

Of course not.  But unscientific thinking presents problems for criminal defense.  After all, some of the anti-scientific protestors at Brookfield Square will be jurors.  How will jurors who contemptuous of science decide cases where “common sense” does not square with scientific evidence?

Take for instance the case of America’s favorite “little tramp,” Charlie Chaplin.  See also, Arthur John Keeffe et al., Sense and Nonsense About Judicial Notice, 2 STAN. L. REV. 664, 670-71 (1950).  In the Stanford Law Review, Professor Keeffe explained that Chaplin had to defend against a paternity claim that was based on the woman saying she slept with no other man besides Chaplin during the period in question.  Chaplin’s defense consisted of unchallenged blood tests excluding Chaplin as a possible father.  The jury found for the woman.  Berry v. Chaplin, 169 P.2d 442, 450 (Cal. Dist. Ct. App. 1946) (jury having heard all the evidence made its determination and the verdict will not be disturbed.

If you think juries have somehow become more sophisticated scientifically, consider People v. Rivera, 962 N.E.2d 53 (Ill. App. Ct. 2011).  Rivera was prosecuted on charges of rape and murder of a young girl.  There was a DNA test result which excluded him as a possible source of semen in the girl’s vagina.  But the prosecution had a jailhouse informant and a confession given after Rivera had endured four days of unrecorded interrogation and had suffered what a nurse described as a “psychotic episode.”  The prosecution explained that the presence of the other man’s semen in the vagina must have resulted either from her coincidentally having had consensual sex with another man shortly before Rivera raped and killed her, or from contamination of the rape kit sample with sperm of another man sometime in the twenty-four hours after the girl’s autopsy.  The state offered no evidence of contamination, and its only evidence of consensual sex was that the girl had been forced to perform oral sex at age eight, knew how to masturbate, and was wearing “red lace panties” the day of her murder.  Jury found Rivera guilty.

Rivera’s case unfortunately is not unique.  Cases examined on the CBS News show 60 Minutes the state obtained convictions of five juveniles in a rape-murder of a fourteen-year-old girl in Chicago based on their stationhouse confessions.  The juveniles say they were forced or tricked into confessing to violent crimes they never committed.  Semen recovered in the rape kit had a single-male DNA profile that failed to match any of the five defendants, but the prosecution continued.  The state’s attorney explained that the five men did not ejaculate and that the semen may have been the result of necrophilia – of an unrelated man having sex with the corpse.  Each of the juveniles spent nearly half their lives in prison before being released.

Scientific ignorance in the criminal system, like real life is a dangerous thing.  In the criminal system, ignorance results in wrongful convictions.