There is bitter irony in the Indiana Court of Appeals’ description of me as “a recognized scholar,” quoted above in the header of this site. The quotation comes from the Court of Appeals’ 2015 opinion in the case of Tyrus D. Coleman v. State of Indiana, which affirmed the denial of Coleman’s petition for post-conviction relief. The same opinion notes that my testimony at the post-conviction hearing was accompanied by “bitter recriminations against the legal system that convicted Coleman.” (I guess you had to have been there, but there was nothing “fervent” about my testimony. I did not volunteer these “bitter recriminations,” but stated them calmly and matter-of-factly under oath during cross-examination.) Some very good reasons for these “bitter recriminations” are summarized in this post at my (currently dormant) blog. (Coleman has a petition for writ of habeas corpus pending in federal district court, alleging that his conviction and imprisonment violates the United States Constitution.)
As for the Court of Appeals saying I am “a recognized scholar,” I wrote the following on January 5, 2016 in another blog post:
Recognized as a scholar by whom? The Court of Appeals and the post-conviction court were presumably referring to this Comment I wrote for the Wisconsin Law Review when I was a law student way back in 1998, which the State brought up at the post-conviction hearing: John Kindley, The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 WLR 1595. But the Indiana Court of Appeals, in its opinion calling me a “recognized scholar,” didn’t actually cite this piece of scholarship. Nor did the Eighth Circuit in its recent “embarrassing” abortion decision, which instead merely cited the declaration, submitted by the State of North Dakota, of a board-certified obstetrician and gynecologist licensed in North Dakota, who “explained some studies support a connection between abortion and breast cancer.” Nor did the North Dakota Supreme Court in disposing, back in 2003, of a false advertising suit I brought against the very same abortion clinic that brought suit as the plaintiff in the Eighth Circuit case. Nor did the courts in California in disposing, in 2003-2004, of a similar false advertising case brought there.
In fact, the last time I was “recognized” as a “scholar” was by then-Congressman Dave Weldon, M.D., back on August 24, 1999 — more than 15 years ago.
The Indiana Court of Appeals (and the post-conviction court) also think that I am “well read.” Let me share an excellent piece of legal scholarship I did happen to read not too long ago, that I think concerns and should interest them very much: The Origins of “Reasonable Doubt” (2005), by Yale law prof James Q. Whitman. Its thesis is close to something Gerry Spence wrote in one of his books, also published in 2005, which he framed as an argument to a hypothetical jury:
The protection of reasonable doubt is not just a protection for Jimmy. It protects each of you. You are men and women with good souls and clear consciences. But what if you were pressured by the prosecution’s arguments to convict Jimmy, and when you got home you began to worry about what you had done, lying awake at night concerned about your decision, your worry that you may have convicted an innocent man?
The rule of reasonable doubt is to protect you. You have a right not to be concerned about your decision. It must be clear to you so that all worry about whether you were right has been removed by the evidence. That is why we have reasonable doubt — not only to protect the accused, but to protect you as well.
Professor Whitman “begin[s his book] with a non-western example [as described by Andrew Huxley], which will offer a useful foil for the Christian tradition that eventually produced the ‘reasonable doubt’ rule”:
In the Tenniya Jataka the future Buddha at one month old, sitting with the king, his father, in court, witnesses his father sentencing criminals to death. Instantly he remembers that in a past life he too condemned men to death, and that as a result he endured the pains of hell for 80,000 years. To escape inheriting the throne, the Future Buddha pretends to be autistic. In the face of this canonical warning that inflicting punishment can damage your kamma [karma], the devout Buddhist prince should refuse to become king.
We can never return to the moral world of our ancestors: The theology that taught them the lesson of “reasonable doubt” is lost to us for good. But the lesson is one that we must find some way to re-learn. Most especially, we must learn it when it comes to jury trial. Indeed, if there is any advantage to jury trial, it is that jurors have not fully come to inhabit the hardened, professionalized attitude of the sixteenth-century continental judge. Lay jurors can still find something shocking and fearful in what they do, at least in capital cases. Even in capital cases, though, jurors must be reminded of what is at stake: As Eisenberg, Garvey and Wells write, “it would be better to openly and routinely instruct jurors that the decision they are about to make is, despite its legal trappings, a moral one and that, in the absence of legal error, their judgment will be final.” It would indeed, and not just where death is involved. Instructing jurors forcefully that their decision is “a moral one” about the fate of a fellow human being, is, in the last analysis, the only meaningful way to be faithful to the original spirit of “reasonable doubt.”