The Guesswork Involved Deciding On The Truth – II

Let’s See What Side I Want To Use

The idea of “a preponderance of the evidence” or as “more likely than not” is used in civil cases. Another standard aside from that and “beyond a reasonable doubt” is “by clear and convincing evidence.” It’s difficult for most people to tell the difference between all these varying standards. These are fictions created by the law so that we can derive an unjustifiable sense of comfort that the fact finders are being put to a greater test in one situation over another. The idea is you may believe something probably happened yet if you don’t have a strong enough belief to believe what you believe you shouldn’t believe it.

I recall one instance that illustrates this. My office tried a case where the judge found by a preponderance of the evidence a defendant’s confession was voluntary. On appeal the Massachusetts SJC  changed the standard from beyond a preponderance of the evidence to beyond a reasonable doubt. It sent the case back to the judge to make his decision under the new standard. The judge who had believed the confession was voluntary by a preponderance of the evidence examined his mind and decided he could not do so beyond a reasonable doubt. It was a marvelous demonstration of mental gymnastics that made us smile.

It seems that most people will believe the gal hit the lad over the head with the beer bottle or she didn’t. They usually don’t say I believe she hit him over the head by a preponderance of the evidence but have a reasonable doubt she did it. I’d suggest in everyday life you either believe something or you don’t.

Aside from having these greater and lesser degrees of certainty, there’s also what’s called the burden of proof. In other words, one side or the other has to produce the evidence to make you reach the conclusion it wants. In a criminal case the burden of proof is on the State to prove you committed the crime beyond a reasonable doubt. A defendant doesn’t have to do anything except in some states where the defendant raises the issue of self-defense or insanity the burden shifts .

I’m writing about this because when a judge makes a factual finding he does the same thing as any other person. In the case of the red light where each party blames the other and there is no other evidence, the judge has no greater insight into it than a jury. How then is a decision made as to what is the truth when it is in dispute? You are supposed to use your background, experience, common sense and whatever other special attributes you may have to examine the full situation and arrive at a conclusion. But how does that help in the red light case? You’re also supposed keep in mind the burden of proof is on one side and if it has not met the burden then you shouldn’t decide for that person.

In the red light case it’d seem you’d be unable to arrive at any conclusion yet it is necessary that it be done. The fact finder will decide by all I’ve previously mentioned but some also by whether you dress or speak in an appealing manner, or whether one lawyer is liked more than the other, or how you parted your hair, if you have any.

Even though you were not at fault in the accident the fact finder could decide an attractive woman would never run a red light but a pot-bellied guy would probably do it. You’d lose.

We recognize this. We know mistakes are made. We’ve had people on death row who were innocent and guilty people acquitted.  You all know that — so why am I mentioning it now.

It’s because I’m going to talk about Judge Wolf’s decision as I go along. I’d ask  you to keep in mind that he can be the best judge in the world, intelligent, diligent and honest, yet he can be mistaken. In fact, it’s more likely a judge will be mistaken because unlike a juror he does not have 11 other people to act as a sounding board for his conclusions. Plus his background may be totally different from those he is judging and he just may not understand some things.  In some situation he does little more than make a mental coin flip.

Throughout Judge Wolf’s decision he picks and chooses what part of Stevie Flemmi ‘s testimony to believe and much of Flemmi’s testimony consisted of him refusing to answer. He accepts some of what he says and finds he is lying in other instances. How much confidence  would you have listening to a gangster who you know is lying to you at least half the time? Would you make a decision on what he said?

Judge Wolf tried to do this. I’ve shown in some places he is totally wrong. His error begets other errors. His findings have been followed and carved in stone. Yet some of them are plainly wrong.


  1. William M. Connolly

    History also shows us the Salem Witch Trials, the Dreyfus affair, lynchings, the mob mentality, scapegoating, yellow journalism, overzealous prosecutors, ethically challenged prosecutors, corrupt judges, politically influenced and press-influenced judges (ex. those who read Black Mass and the Boston Globe; viz Connolly’s prosecution and the St. Pat’s Parade case) the false prosecution of the Duke Lacrosse players, the false prosecution of Reagan’s Secretary Raymond Donovan, etc, etc. etc. History teaches us that governments, including our own, have falsely prosecuted and unjustly persecuted innocents. Innocent men sit in jail today, wrongly convicted by unscrupulous prosecutors; wrongly sentenced by politically influenced judges and judges willfully blind to constitutional principles. Every era has its sacrificial lambs. Look no farther than the Boston Office of Department of Justice over the last few decades, ever since Wyshak and company became first mates; ever since Wyshak and company came on board, the office has become mutinous to the constitution, the spirit and letter of the law, the concepts of fairness and equal protection. Tierney’s family gets a slap on the wrist; other families, less culpable, are crushed; first offense for McDonough and DiMasi taking $65,000 in bribes, they get seven to eight years in prison; a lawyer who stole millions from clients, including little old ladies, gets three years.

    • Bill:
      The basis of a system where humans are the judges of other humans incorporates the idea that mistakes will be made. We see that everyday in the action of our forces fighting in foreign lands where, as we saw yesterday, NATO force mistook two seven year old boys as Taliban infiltrators and murdered them for which apologies were forthcoming. Like in war, the court rooms will produce bad results but that does not mean the prosecutors or judges are corrupt anymore than it means our brave soldiers when they make mistakes are corrupt. They are human and to be human is to err.
      I believe someone said “the rich and powerful are the same as everyone else but a little better.”
      It does seem Wyshak has a double standard. If the Globe wants someone brought down like the probation officers he’ll leap to the task and grossly overcharge; if the media has demonized someone as it has with the Bulgers he’s on board with both guns blazing and if he were not restrained by higher authorities and let loose he would have had anyone in Eastern Massachusetts named Bulger indicted; and perhaps have extended it to anyone named Connolly. If he sees that overcharging like in the Tierney case may be politically unwise he’ll bend the other way and under charge. He’ll indict bookies wives and give the husbands of political wives passes. Sometimes one stays on a little too long, their act wears thin and their loose their balance. It seems that he doesn’t get the job of being a good prosecutor as defined by Justice Jackson. One would have difficulty finding Humility the core essence of a prosecutor lurking anywhere around him.

  2. “His error begets other errors. His findings have been followed and carved in stone. Yet some of them are plainly wrong.”

    In this case you are writing about Judge Wolf…but haven’t you hit on an issue that is more pervasive in the Court system today? If one lie to one judge is converted into a truth in its repetition, then at what point is that lie corrected? As you point out the burden of proof lies at the doorstep of the prosecutor…so it must be the duty of a new prosecutor and his/her superior to make certain that the first lies are not further perpetuated? And, if this is the case, the what must the current prosecutor in USA v Bulger do to make Justice happen?

    • Jean:
      As I said the lie is carved in stone and as you said it is converted into the truth. Judges don’t like to go back over the same ground as their fellow judges so they accept what’s already carved. Everyone goes on. No one wants to go back. We live with the lie. It’s sad but that’s how things are done. It’s part of our history. We knew that Stalin executed tens of thousands of leading Polish citizens in the Katyn Forest massacre. At that time Stalin was our ally and said the Germans, our enemies, did it. We played along with that lie for years. Fortunately that one did not become the truth and maybe some day in the Whitey matters, and even your situation, all the lies out there will be turned around but you are battling against a tide that wants to move forward and not look back. That’s the new American way, as Obama said, we won’t look back.

      • “Fortunately that one did not become the truth and maybe some day in the Whitey matters, and even your situation, all the lies out there will be turned around but you are battling against a tide that wants to move forward and not look back. That’s the new American way, as Obama said, we won’t look back.”

        If I recall correctly after the S&L Crisis of the late 80’s, ( yes – the one that John Iuele and Michael Milken were instrumental in creating) it was public policy to ‘move on’. Recent history shows us that an attitude of not identifying, and then correcting the bad policies, and punishing the perps allowed the past perps to continue with a winning playbook, which most likely brought us the Great Recession of 2008…many of the same folks benefited from both Crisis, but not the US Taxpayer, or America…or the World, if truth be known.

        It would appear to me that the folks that benefit from past lies in USA v Bulger, as in my situation will most likely benefit this time, and they may die with the most toys.

        But history shows us that Sovereign Nations fall every time under the weight of uncorrected past lies, and corruption. America may be an exception in the short run, but it could also follow the rule. That is a hard decision for a newly elected second term President to consider, if he decides to allow the truth to be bargained away now. Or, maybe it’s not such a hard decision, as I have already quoted, “if the truth does not set us free, what does that say about us?”

        • Jean:
          Well put. We can only pretend to ignore the past for so long before it starts to catch up with us. America may already be hearing the footsteps with all kerfuffle over Sequestration with the president running around like Chicken-Little telling us the sky is falling and nothing happens. Maybe our government has cried Wolf too many times. Maybe the people are waking up and beginning to think or the footsteps are the masses running to escape the impending doom.