LOUISIANA PUBLIC DEFENDER BOARD

 

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IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO EXCLUDE
BOGUS STATISTICAL EVIDENCE PROPOSED BY STATE EXPERTS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Louisiana law to exclude certain bogus statistical evidence from his trial, as having insufficient basis in verifiable scientific fact. In support of his motion, Mr. CLIENT states as follows:
1. The prosecution apparently intends to seek to prove that, because Mr. CLIENT allegedly has blood with three different enzyme types (variants on ABO, PGM and ESD), the "probability that Mr. CLIENT is not guilty" becomes the product of the alleged frequency with which each enzyme appears in the population. The Court should not admit the statistics which state experts intend to create from whole cloth in this case. Upon close analysis, this statistical disinformation turns out to be entirely bogus, and this Court must conclude that Mr. CLIENT "should not have . . . his guilt determined by the odds . . . ." People v. Collins, 68 Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33, 33 (Cal. 1968).
2. As a former British Prime Minister is reported as having said, "[t]here are three kinds of lies: lies, damned lies and statistics." Huff, How to Lie with Statistics (Gollancz, 6th Ed. 1954) (quoting Benjamin Disraeli (1804-81)). Likewise, Mark Twain once commented on the dangers of statistical extrapolation. He had been told that the changes in the course of the Mississippi river had resulted in its shortening by 242 miles in 176 years, a change of just over a mile a year:
Therefore, any calm person, who is not blind or idiotic, can see that in the Old Oolitic Period, just a million years ago next November, the Lower Mississippi River was upward of one million three hundred thousand miles long, and stuck out over the Gulf of Mexico like a fishing rod. And by the same token any person can see that seven hundred years from now the Lower Mississippi will be only a mile and three quarters long, and Cairo and New Orleans will have joined their streets together, and be plodding comfortably along under a single mayor and a mutual board of aldermen. There is something fascinating about science. One gets such wholesale returns out of such a trifling investment of fact.

Twain, Life on the Mississippi (1874) (in How to Lie with Statistics, at 142).
3. The problem with Twain's tongue-in-cheek analysis and the statistical "method" employed by the technicians in this case is that in the rush to extrapolate from "scientific" data, the "statistician" failed to consider the interrelation of the data. Consider the first "glaring defect in the prosecution's technique, namely an inadequate proof of the statistical independence of the . . . factors." Collins, 438 P.2d at 39. The technician makes no showing that all persons with a particular ESD type do not also share the same PGM type. He merely multiplies the statistically-observed frequency of either.
4. More fundamental, his figures are based on the analysis of blood performed by the same Crime Labs which erred in over seventy percent of the cases they performed. This is like basing a theory of gravity on observations provided by members of the Flat Earth Society.
5. The entire testimony is also flawed by a failure to adhere to the scientific method. The technician knew the answers he was looking for before he ever tried to conduct the analysis. As Professor Tribe has written, this flaw permeates the ensuing analysis, since once the police have "learned of the features of [the suspect] . . . the prosecution was hardly likely to charge someone not sharing those features. . . ." Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1367 (1971) (emphasis in original).
6. Courts and commentators have "warned that '[m]athematics, a veritable sorcerer in our computerized society . . . must not [be allowed to] cast a spell over [the trier of fact].'" Trial by Mathematics, at 1334 (quoting Collins, 438 P.2d at 33). Under similar circumstances, the Supreme Court of Mississipi has additionally admonished that "[t]he circuit judge . . . should be guarded in the use of statistics. . . ." Bevill v. State, 556 So. 2d 699, 707 (Miss. 1990). This Court must therefore guard against the strong likelihood that the jury will be misled by the aura of seemingly scientific and statistical evidence.
7. Indeed, in People v. Robinson, 27 N.Y.2d 864, 265 N.E.2d 543, 317 N.Y.S. 2d 19 (N.Y. 1970), the court held that the trial judge should have excluded evidence which was similar to that in this case:
Proof that defendant had type "A" blood and that the semen found in and on the body of the decedent was derived from a man with type "A" blood was of no probative value in the case against defendant in view of the large proportion of the general population having blood of this type and, therefore, should not have been admitted.

Id.; accord People v. Macedonia, 42 N.Y. 2d 1944, 366 N.E.2d 1355, 387 N.Y.S. 2d 1002 (N.Y. 1977); People v. McMillen, 126 Mich. App. 211, 336 N.W.2d 895 (Mich. App. 1983); People v. Harbold, 124 Ill. App. 3d 363, 79 Ill. Dec. 830, 464 N.E.2d 734, 749 (Ill. App. 1st Dist. 1984); see also United States v. Massey, 594 F.2d 676 (8th Cir. 1979); State v. Carlson, 267 N.W.2d 170 (Minn. 1978); State v. Boyd, 331 N.W.2d 480 (Minn. 1983); People v. Risley, 214 N.Y. 75, 108 N.E. 200 (N.Y. 1915); Dorsey v. State, 276 Md. 638, 350 A.2d 665, 669 (Md. 1976); Campbell v. Board of Education, 310 F. Supp. 94, 105 (E.D. N.Y. 1970).
8. "Because of the qualitative difference [between death and any other form of punishment], there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); accord, Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (O'Connor, J., concurring). Therefore, the statistics in this case should be excluded, and the prosecution should be ordered to rely on proper proof.
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