A. Lincoln For The Defense

Recently, I issued a post which mentioned the Duff Armstrong murder case, in which Lincoln won an acquittal. Reading further about Lincoln's law career, I came across another of Lincoln's murder cases. Like many Lincoln stories, documentation of the details of this case relies partly on records and partly on folklore.

In 1857, Lincoln represented Melissa Goings, who slugged her abusive husband over the head which resulted in his eventual death. She was charged with murder, although many in the Metamora, Illinois community sympathized with her, knowing her husband's reputation for overly aggressive wife beating.

According to the local legend version of the case, Ms. Goings had been released on bond which had been posted by sympathizers. But the judge, who was not sympathetic to her plight, revoked her bail and remanded her to custody. Sensing the case was going badly, Lincoln asked for time to meet in private with his client and was placed with her in a room on the first floor of the courthouse while the bailiff stood guard outside the door.

At one point, Lincoln left the room. After a while, the bailiff entered and found that Ms. Goings had escaped through an open window.

In a packed courtroom, Lincoln was questioned about his client's absence. He shrugged, said that she had asked him for a drink of water. He told her that the water in Tennessee was sweet. He then left the room.

Supposedly, the audience in the court burst into laughter.

Whether this story is the truth, the whole truth and nothing but the truth is in doubt. It fits a bit too well into the Lincoln lore - admiration for the man of the people who knew how to evade the harsh letter of the law in order to evoke the spirit of the law. The record is devoid of any reference to sanctions imposed upon Lincoln for what the judge surely would have perceived as outrageously unethical conduct.

If Lincoln had made the statements attributed to him, it may have been an example of his famous sense of humor, meant to defuse a tense situation, rather than a serious implication of his complicity.

Historians note that a warrant was issued for Goings' arrest, but when Lincoln returned the next year, he met with the prosecutor and the warrant was quashed and the case dismissed. It has been inferred that, because the community sided with her plight, the lawyers may have conspired to "settle" the matter this way.

Lincoln spent 23 years as a practising lawyer, representing clients in an estimated 5,000 cases of all sorts. Scholars make the case that his experiences as a lawyer during those years formed the character that marked Lincoln's future greatness as president.

Was Preservation of the Union a Moral Issue?

Modern historians hold that the Emancipation Proclamation "ennobled" the cause of the Civil War by making it a moral crusade to free the slaves and, eventually, to end the institution of slavery, which led to the recognition of the equality of all, thus perfecting the Union envisioned by the Founding Fathers.

Yet, Lincoln often said that preservation of the Union was his first and only concern. He famously said that to preserve the Union he would be willing to free all slaves, no slaves or some slaves. While I understand that his views of the goals of the War changed as it progressed, and that he grew to see the issues as unified, he continued to express it in terms of the question of Union, i.e., "... whether that nation [conceived in liberty and ... the proposition that all men are created equal] shall endure ...."

Lincoln repeatedly insisted that his mission was to preserve the Union at any cost --- in the face of disastrous military defeats, despite waste of treasure and lives of unprecedented numbers. Many in the coalition that brought him to power lost heart, repeatedly advised him to negotiate a peace, called him a tyrant, decried his intransigence. Yet, Lincoln persisted in his singlehanded pursuit of complete victory, which meant to him re-union. Why?

Why was Lincoln, who we now perceive as the deepest thinker of his day, the most eloquent spokesman of our nation’s principles, so focused on the issue of Union? Why was the principle of Union so important to Lincoln?

Would Lincoln have pursued a Civil War only to abolish slavery?

Was one a "moral" issue and the other merely a political one?

Why were the issues of Union and slavery so inextricable and so insoluble?

By the way: Why was slavery so important to the South when it is acknowledged that only a small minority of southerners actually owned slaves?

Why were poor southern farmers who made up the vast majority of the Confederate army willing to die for the right of a few wealthy plantation owners to their "property," a source of free labor?

Was slavery the issue Northern soldiers were willing to die for?

Modern historians concede that even if slavery was not the issue at the start of the war, by its end – especially after emancipation – it became the moral justification for the war, the issue that made the devastation and death toll morally justifiable in the eyes of history. Both sides claimed to be fighting for liberty and it was the existence of slavery on one side that made them the wrong, evil side.

All of that is true, but it implies that the issue of Union as a principle, contrasted with that of slavery — was not a moral question.

I am not so certain. I believe that Lincoln held Union as a principle of such importance in and of itself that it was worth dying for, whether or not the seceding states were slaveholders.

Lincoln certainly was opposed to slavery as an immoral institution. But if we take his words seriously, he saw another issue, that of Union, as more immediate, and the issue that was worth the enormous costs of war.

Everything we know about Lincoln leads to the conclusion that he was not a man who would have pursued such a war over an issue which he did not see as a moral and fundamental principle which was at the heart of his understanding of human effort.

Although Lincoln was a dedicated lawyer -- to whom the rule of Law was important, and for whom The Law was an important statement of ideals, I do not believe that his dedication to Union was merely legalistic.

The legal argument for Union is not a compelling one from a moral standpoint. It was based on the recognition that no government sows the seeds of its own destruction at its inception by permitting its dissolution any time a minority loses a vote.

On its face, The South’s legal argument for secession is the more attractive one. The Declaration of Independence established the principle that people have the right to withdraw commitments of loyalty to a government which they believe has become tyrannical. The colonies had grievances against the English king which were economic, but which they perceived as fundamental to their liberty.

Of course, the moral underpinning was inextricably bound to the moral issue of slavery in that the rebuttal is that one-third of the Southern population was not free, a fact which undercut the legitimacy of any southern complaint of tyranny from the central government.

However, the fact that slavery existed at the time of Union and was in fact recognized in the Constitution is a powerful legal – if not a moral – argument for its legitimacy.

The Constitution was a contract among the sovereign states which established a governmental system based on a fair but delicate balancing of the concerns of large states (those with large populations) vs. small states; agriculture dependent states vs. industrial ones; centralized power vs. local rights. The Southern delegates (particularly those from Virginia, Georgia, the Carolinas) were among the primary supporters of the Constitution in its final form as a contract of compromise. Southern historians have noted that they certainly would not have entered into the agreement if they thought they could not terminate it if it became too onerous.

By 1860, Southern leaders had good reasons to believe that the conditions that impelled them to join the union of states had irrevocably changed beyond amendment or compromise. The northern states far surpassed the South in population, industrialization, and wealth. Fundamental issues relating to finance, foreign affairs, and trade divided the sections in every vote in Congress. Southern states had maintained a tenuous power in the federal government by presence on the Supreme Court, in the bureaucracies, the Presidency, and in the congressional committees because of longevity.

But all that was threatened by continuing immigration from Europe (the vast majority of immigrants were attracted to the cities of the North where employment opportunities were greatest) and the inevitable westward expansion, which would bring in states which would reduce the power of the South to nothing.

This is why Southerners persisted in making the central issue of the first half of the 19th century in Congress whether new states would be slave or free. The southern hope was that new slave states would maintain the balance of power. But they must have realized that it was a losing proposition, even if it could be achieved.

A look at the western map revealed the certainty that many more non-slave states would eventually be admitted to the Union. Kansas and Nebraska, the last attempt of a long history of desperate compromises, proved that self-determination would result in more Southern losses. Slavery was too expensive to its owners, and was viable only if the labor was economical. It was, in the cotton states, but the conditions including climate and suitable farmland did not exist in most of the western lands.

I recognize that "slavery" was central, not only to Southern economy, but also to Southern social structure. By 1860, the Southern economy was so dependent on cotton which was dependent on slavery that it could not give up either without destroying itself. Moreover, Southern manhood and self-image was so wrapped in its superiority over the slave class that poor whites could not conceive of life without the existence of Negro slaves as a class below their own.

The growth of the abolition movement in the North was terrifying to the South for these economic, practical, and psychological reasons. The movement was vocal far beyond its actual numbers, and in its radical extreme, made full use of propaganda available in contemporary media: the growing newspapers of the cities, the pulpit, the speech circuit, the popular novel ("Uncle Tom’s Cabin" was a best seller, a galvanizing symbol of the movement the way "The Jungle" and other muckraking books were for a later generation of reformers). Monied Christians in Northern cities were pouring money into the movement in support of the underground railroad and radical terrorists like John Brown, whose cry for slave revolts were feared.

Yet, my speculation is: What would have happened if the South chose not to secede? Would the abolition movement have achieved its goal by the vote?

There is good reason to believe it would not have won any time soon. There were no polls of the day, but it is certain that a vast majority of Northerners would have opposed emancipation. First, it would have been seen as disastrous to create a flood of cheap labor into northern cities, competing with the burgeoning immigrant labor market. Second, even among abolitionists, racial mixing was anathema.

Lincoln and others who saw slavery as immoral also foresaw insurmountable problems in freeing Negroes to full equality, and preferred a plan of colonization to Africa. That plan would also have been prohibitively expensive and impractical (the Negro slave population was 3 million). Any plan of emancipation would have required compensation to slave owners for their loss of "property" and also would have caused disruption of a critical source of national wealth – the trade of raw cotton to foreign nations, which now would be far more costly to produce. Beyond all that, the South’s predicament of diminution of power and influence over its own fate would have remained unsolved.

Also of parenthetical interest relevant to our day is that the Bible was used by both sides of the abolition argument to support its position. In our day, current issues have its passionate adherents quoting the gospel on either side of issues like homosexuality, abortion, and "family values." Southern Christians pointed to the existence of slavery in the Old Testament and New. Northern Christian abolitionists quoted the principles of Christian morality in support of theirs.

It is clear that slavery was an inextricable part of the Gordian Knot of the day. But I have a nagging sense that there was even more at stake.

I believe that Union was essential for another reason, which becomes evident when I ask another speculative fascinating question:

What would have happened if Lincoln had permitted the southern states to secede? ... (or if the South had won the war? – a possibility that seemed likely with small turns of events, such as if Lincoln had taken Horace Greeley’s advice after the debacle at Bull Run, or if England had conferred recognition and support to the Confederacy, which was arguably in its national interest to do.)

The first result would have been that there would be two nations on the continent (in addition to Canada and Mexico). Border disputes would then have been inevitable and competition for western territories also likely.

But how long would it be only two nations?

Once the principle of secession had been established, it is probable that the Confederacy would have splintered into additional nations: the Deep South vs the border states, for example. Pioneers with dreams of nationhood might claim western territories as independent nations, as Texas had done, arguing persuasively that its interests were peculiar to its settlers, far from Washington.

European nations would certainly strive for influence in the new nations, and perhaps seek colonial expansion in the west. Religious minority sects, like the Mormons, might seek to create their own nations, rather than accept statehood within a less united United States. The disputes which later divided the nation in subsequent years – such as a gold vs. silver standard which separated western agrarian debtor states from the industrial creditor northeast; or temperance; or whether to participate in foreign wars — might have impelled national schisms in movements for further secession.

The consequences for the future of the continent and the entire world would have been monumental and disastrous. The United States would not have been the power it has become in the world. The century of peace and prosperity we have known would not have happened. Wars would have been common, wealth and resources wasted in competition and expenditures for secure borders.

The surmise leads to the question of "Manifest Destiny," the ideology that the white Christian American was destined to control the continent for the good of mankind. The concept today has so many negative connotations that I blush to refer to it as legitimate ideology. But the fact is that the concept was widely cited as a rationale for westward expansion in the 19th century, and in fact has been traced to the very beginnings of American colonization in the 1600's.

The pejorative inference derives from the inherent and arrogant assumption of racial and religious superiority and the resultant genocide of Native American races that it engendered and sought to justify. It was not unanimously approved, either as an ideology or as a policy.

Occasional opposition came from those who opposed empire building through the subjection of other Peoples. Notably, both the proponents and opponents cited the same concerns: racial homogeneity.

The Whig Party, of which young Congressman Lincoln was a member, opposed the Mexican War as immoral and expansionist, and also opposed expansion of slavery into new territories, but they were a minority and the expansionists prevailed. The nation won the Mexican War, admitted Texas and California into the nation and committed to continental dominance. The project of the continental railroad was begun during the Civil War, impelling Lincoln’s longing to see California, and was completed in 1868.

But the irony of American continental expansion is that what sets our nation apart from other nationalist movements (such as those which unified Germany and Italy in the 1860's) is our diversity of races. Germany united Germanic Peoples in the various entities; and Italy united Italian speaking Catholic Peoples. Other nationalist attempts which have united – by force or agreement – diverse cultures, have failed to last. Yugoslavia, the Soviet Union are but two examples. Yet, the United States of America lasted, despite all its contradictions: a war conducted to defeat the right of its sovereign units to self-determination; the defeat of slavery followed by the genocide of the Indian race and the continuing discrimination against the freed slaves to the point of subjugation and degradation for a hundred years.

Lincoln, as a man of his century, was certainly aware of what fragmentation of the European continent had meant throughout the ages: interminable wars, poverty, class stratification, religious ferment, famines, plague, tyranny. For the United States to survive, to thrive and prosper, it was evident that it had to avoid that fate, and could insure success only by continental hegemony. That principle is something worth fighting a war to preserve, and if the nation so conceived is thought by its citizens as the last best hope for humanity, it's preservation becomes a moral imperative.

I suspect that my hypothesis can never be proved. Contemporary writings are of limited value for seeking true motivations because people of the time were unaware of the forces which are so clear to us in retrospective analysis. Their rationales given in their speeches and tracts in support of policies are framed in rhetoric which masks the underlying reasons which necessitated the policies. In other words, people who urged a continental nation were right for the wrong reasons.

Just as we fought World War I for the stated reason of "saving the world for democracy" and ending all wars, ignoring the more complex but logical rationale that it was not in our national interest for Germany to defeat France and England, to dominate Europe, I suspect that the true reasons for the Civil War and for continental nationhood were submerged beneath the historically morally justifiable cries against slavery and for the morally questionable claim of manifest destiny.

Of course, I may be entirely wrong. I may be interpreting the effects as the object of the policies, when in fact they may have been unforeseen and unintended happy accidents. Without the evidence of documentation that it was in the ken of people of the time, it is impossible to prove.

If Lincoln supported American expansion, why did he oppose the Mexican War?

Although the younger Lincoln opposed the Mexican War, adopting the Whig party’s stated rationale – immorality of imperialistic acquisitiveness, the underlying political objection was that the acquired territories were expected to be slave or slave friendly states. The compromise of post war admission of California as a non-slave state to balance Texas as a slave state eased those concerns for the time being, but ended the debate about continental settlement.

By the time Lincoln acceded to the presidency, the concept of a continental nation was beyond argument. As a westerner, Lincoln was well aware of the migration of thousands westward (after the gold strike of 1849) and the inevitability of statehood for the territories. During his presidency, he supported legislation establishing the land grant colleges, the continental railroad project, the Homestead Act, all of which were designed to empower the continental nation.

In the battle between Native Americans and settlers, Lincoln made a clear choice. In his twenties, he participated in the Black Hawk War, though the crew Lincoln commanded killed nothing but pigs and chickens, he later joked. As president, in 1862, Lincoln acted decisively to end an uprising of Dakota Sioux warriors, who killed hundreds of settlers in Minnesota. In the midst of the Civil War, he sent an army to quell the uprising, imprisoning many, approving the execution of almost 40 Native Americans. Some historians call this the largest mass execution in American history and others have noted that the Sioux atrocities against the settlers was the costliest act of "terrorism" in our history until the twin towers.

Western settlement was in Lincoln’s pioneer blood. His father had moved the family from Kentucky to Indiana. Lincoln thought of himself as an example of the American dream — the land of opportunity, permitting the ability to rise from poverty and illiteracy to wealth, position and power. As a young man he traveled the Mississippi. As a lawyer, he was immersed in lawsuits which involved the issues of the frontier: canals, bridges, railroads. As a politician he welcomed his label as a representative of the west.

When Lincoln was born, Jefferson was just ending his second term. Lincoln, the self-educated intellectual, was thoroughly versed in the struggles of the Founding Fathers to form the Union and to hammer out the contract known as the Constitution. Lincoln, the lawyer and politician, understood that the concept of "liberty" was central to the American experiment of self-government and fully accepted the notion that this nation was the best hope of mankind to be free.

How could such a man not have thought that preservation of this Union was a moral imperative?

The Great Deception

Part of the argument over the current economic crisis is a revival of the debate about F.D.R.’s policies combating The Great Depression of the 1930's.

Rhetoric from the Right has become the popular revisionist view: that the New Deal’s radical programs and huge federal government involvement in the economy not only failed to end the Depression, but actually lengthened it. It did not end until World War II impelled full production and employment.

That view, however, is an oversimplification, that is not supported by the historical facts and fails to answer two questions. (1) If it was a failure, why was FDR re-elected overwhelmingly in 1936, and again in 1940? (2) Wasn’t World War II the biggest government project of all? Apart from ignoring these inconvenient questions, the conventional wisdom is contrary to the evidence.

Political historian James MacGregor Burns in his book, “Roosevelt: The Lion And The Fox”, points out that Roosevelt’s first term (1933 - 1936) was successful in stopping the slide and turning the disastrous economy around. Roosevelt was re-elected by an enormous margin, winning all but two states. FDR’s legendary skill at inspiring confidence was not an illusory trick. There were good reasons for the public’s overwhelming support. The New Deal had worked.

“By almost any test the economic surge since 1932 had been remarkable. Unemployment had dropped by almost 4 million since the low point early in 1933; at least 6 million jobs had been created. Payrolls in manufacturing industries had doubled since 1932; stock prices had more than doubled. Commercial and industrial failures in 1936 were one-third what they had been four years before. Total cash income of farmers had fallen to four billion in 1932 and recovered to almost seven billion in 1935. Capital issues had shot up sixfold sice 1933. The physical volume of industrial production had almost doubled.”

However, in 1937, the economy turned sharply downward again, wiping out many of the gains of the last four years. The period of 1937-1938 came to be known as “The Roosevelt Recession.”

Burns ascribes the downturn to several causes. After his stunning re-election, an overconfident FDR frittered his political capital on his wrong-headed effort to pack the Supreme Court. The conservative Court had overturned as unconstitutional several of the New Deal’s more radical programs, notably the NRA, infuriating FDR. His solution was to propose increasing the number of justices, a notion that the more traditional members of FDR’s famous coalition (particularly Southern Democrats) could not abide. The press and eventually the public was outraged.

More seriously, it exposed a basic flaw in FDR’s political nature. He had never followed a coherent or consistent economic theory, filling his brain trust of advisors with contradictory advice that he never committed to with any enthusiasm. When he first ran, in the fall of 1932, he had promised to balance the federal budget. By the time he was inaugurated, the emergency had deepened so much that he had abandoned that idea in favor of the deficit spending that marked the New Deal. In the beginning, he acted boldly.

Burns observes: “In three years, federal and other relief agencies had poured over 5 billion dollars into work projects and related relief activities. Another 4 billion had gone into public works: roads, dams, sewage systems, public buildings, and the like.” Agricultural programs (AAA) had succeeded in establishing price supports and federal lending through the RFC had been increased. Social Security began collecting payroll taxes in 1936, and while initially it was a drag on the economy, eventually it would provide the safety net for unemployment and old age. The Home Owners Loan Corporation reduced foreclosures for millions. “The WPA put to work not only blue collar workers but artists, writers, actors, teachers - and in jobs that salvaged their self respect. The National Youth Administration helped thousands of hard-pressed high school and college students to continue their education.” The S.E.C. and F.D.I.C. stabilized investment and banking.

The New Deal’s support for unionization was another critical factor that had controversial effects on the economy. Conservatives violently opposed the movement, citing the drag on business from the pressure to raise wages and working conditions and attendant strikes that fought for these changes. Proponents of unions argued that higher wages and job security were necessary to increase the buying power of workers, to stimulate growth of the middle class.

In 1937, after the court packing debacle, FDR lost his political footing, wavering in his usual forceful confidence in his programs. Congressional conservatives abandoned him and forced a change in direction. The administration sharply reduced spending, submitted a balanced budget. When the economic downturn became evident that year, FDR waffled, unwilling to increase federal spending which would devastate the budget. It was not until the next year, 1938, when the federal budget once again increased, that the recession subsided.

Almost all economists agree that high tariffs imposed by many nations, including the U.S., for the populist cause of protectionism was short-sighted and counterproductive to recovery.

Burns concludes that the inability to end the Depression was not caused by a failure of the theory of government activism. Rather, it was the timidity of Roosevelt’s continued commitment to decisive action after the initial surge of his first term.

In later years, economic theorists have continuously debated the point. Although FDR’s economics was not strictly “Keynesian,” neo-classical economists led by Milton Friedman argued that the New Deal big government solutions failed because it tampered with free markets. Friedman became the leading guru of the Reagan Era, impelling de-regulation and reduction of governmental oversight of the economy, which seems to have laid the foundation for the crisis today.

Uncommon sense

Contrary to popular belief, the legal system is not designed to find "the truth, the whole truth and nothing but the truth."

It has a far less ambitious role, to resolve disputes in a peaceful, socially acceptable manner . It is simply an orderly alternative to violent arguments.

The disciplines and institutions that claim to be possessors of The Truth (like religions) or at least try to systematize the search for The Truth (like science or philosophy) or those that promise thorough if chaotic access to The Truth (like art, journalism and the internet) arguably have had no greater success in finding nonviolent solutions to society's problems.

Like science and philosophy, The Law relies on the idea of debate - adversarial presentation of evidence, cross-examination, and arguments - to reach decisions. Each side is assigned a position to advocate strenuously in opposition to the other.

Wigmore the English legal scholar, stated, "Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not the impale his own cause upon it."

The legal system works best when it retains this skepticism, demanding credible evidence amounting to a high degree of proof before reaching final decisions.

The Law is accordingly suspicious of so called "common sense" (sometimes known as "conventional wisdom"). The phrase itself needs to be parsed, studied and thoroughly examined.

It is "common" because it constitutes widely held beliefs based on lore, anecdotal evidence, collective experiences (also known as rumor and hearsay), and often cursory observations. The word "sense" in this sense has a dual meaning. Sense infers correctness, as opposed to nonsense; it also relates to things that appear to be true to the senses. Senses can be misleading; perceptions of correctness can sometimes be equally wrong.

For instance, common sense as expressed in a commonly held sardonic axiom, is that "if it looks like a duck and quacks like a duck, it is a duck." The law expresses this principle as an example of circumstantial evidence, which the law defines far more carefully, using a different example with the same message. (CALCRIM - jury instructions 223 & 224):

"Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself.
For example, if a witness testifies he saw it raining outside before hecame into the courthouse, that testimony is direct evidence that it was raining.

Circumstantial evidence also may be called indirect evidence.
Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question.

For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.

Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other.

Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.

If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.

However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

This cautionary clause is an expression of widely told folk tales that reveal the wisdom of skepticism in the face of apparently convincing indirect or partial evidence.

One of my favorites is the tale of the six wise men examining an elephant. Each touches a different part of the elephant and draws conclusions based on the limited evidence. One blind man feels the leg and concludes it is a tree. Another the side and envisions a wall. And so on. (See the interesting Wickipedia article, noting the derivations (Indian religious texts) and variations.

In logic, the problem is sometimes called the fallacy of exclusion, or of insufficient sampling (in statistics). In policy making, this fallacy can lead to disastrous results. When the perceiver expects or desires a particular result, intentional (or negligent exclusion) is called "selection bias."

Courses on logic are offered in colleges, but usually they are hidden in Philosophy departments. The basics should be taught as a pre-requisite to entry into any other area of study, because it teaches the one sine qua non, a way to approach any issue.

Our invasion of Iraq, of course is the most blatant and obvious example of this fallacy. The Bush administration drew conclusions from circumstantial evidence derived from often speculative and conclusionary intelligence gathering that conformed to their "belief" that Hussein was a threat, while disregarding, suppressing or minimizing contradictory evidence and inferences.

Their arguments shrugged off "legalistic" objections to the quantum of proof, proposing the common sense based dogma that national security required a lesser standard of proof than beyond a reasonable doubt. Considering the magnitude of the potential threat, they concluded that it was better to err on the side of action.

This impulse — to make decisions based on fear is precisely what causes juries to convict persons accused of heinous crimes on less evidence than they would require if the crime was less serious — is an example of common sense that is in fact contrary to logic, especially as applied to criminal cases.

Logic would seem to demand that the greater the potential punishment, the more certain should be the conclusion of culpability. But, even though the law demands presumption of innocence and proof beyond a reasonable doubt, some crimes are so inflammatory that those cautions are tossed. The instincts of jurors is to err on the side of their fear of releasing an accused child molester, serial killer or gang member.

Another fallacy of common sense is what I call the "who-could-be-so-stupid" fallacy. It proceeds from the assumption that people act in their own best interests, and are not likely to act in ways that expose their faults. Juries sometimes apply it to defendants, jumping to conclusions of innocence and often apply it to alleged victims and witnesses as well. Police officers often benefit from this presumption when jurors conclude that a police officer is telling the truth because "he has nothing to gain by lying."

DOA: Post mortem DNA

In 1985, a Texas Tech co-ed, Michele Mallin, was raped.

Eventually, police arrested a suspect, an African American named Timothy Cole. They put his polaroid photo with five mug shots. Mallin now claims that his photo stood out like a sore thumb and police told her that he was a violent criminal. She identified him again in a live line-up.

Cole claimed innocence, turned down a plea bargain for probation. After his conviction and sentence of 25 years in prison, he was told that his release on parole depended on his expressing remorse, which meant admitting his guilt. He refused.

In 1999, Cole died in prison, from respiratory illness. He was then 39 years old.

In 2008, The Texas Innocence Project tested DNA in the Mallin case. It was matched to Jerry Wayne Johnson, who is serving life in prison for other rapes. Johnson then confessed in the Mallin case.

In a court hearing, Johnson apologized to Cole’s family. So did Mallin. The Lubbock County D.A.’s office did not participate in the hearing.

The state judge expunged Cole’s record.

Source: Los Angeles Times, 2/7/09.