Even judicial opinions spin their facts (updated)

[Update below] What, really, is a fact? The word, which seemingly should have one simple definition, in fact does not.  For example, in science, a “fact” is an observation that has been repeatedly confirmed and for all practical purposes is accepted as “true.” In law, on the other hand, a “fact” is what 6 people say it is. In other words, it’s not a validation of what actually happened, but what reasonably could have happened. A fact is also determined based on a rather narrow, limited universe: some things aren’t taken into account and conclusions are made by ignoring other, contradictory events.

One example of this is if you read any appellate court opinion by a Connecticut court written in the last decade or so, almost all of them will have a recitation of the “facts” that begins with the following sentence:

The jury could reasonably have found the following facts

Invariably, this recitation is skewed toward the interpretation of those “facts” that supports the court’s eventual decision. If you need to uphold a questionable stop of a car on the road, highlight the helpful police officer’s testimony while downplaying or even ignoring frame-by-frame video evidence.

Two days ago I wrote a post about a juror who demonstrated that she believed the defendant to be guilty even before the presentation of evidence and who was “bullied” into stating that she could be fair despite those prejudicial beliefs. At the time i wrote the post I didn’t read the opinion. A helpful commenter has provided a link to the opinion. It perfectly illustrates the point I’m making here. First, let’s remember from my post that the transcript revealed that the juror made several assertions that she would not be able to be fair:

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

So let’s go take a look at the opinion. Find the Control and F keys on your keyboard. You’re going to need them. In the opinion, the judge explains that the trial court, before the evidence, explained to the panel that the case involved allegations of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. At the time jury selection occurred, both the prosecution and the defense questioned the jurors including Juror 112, who did not indicate any problem with judging the case fairly.

Then it starts getting messy:

The next morning, after opening statements but before the first witness took the stand, Juror No. 112 alerted the trial court she had worked with a teacher at a middle school “who is presently serving his sentence for the same thing that went on here. I did not remember until this morning.”

The prosecutor asked the juror how she would vote if asked to do so “right now,” and the juror responded, “Knowing your opening statements, I would have to say guilty[,]” but clarified she would have to hear all of the evidence before reaching her decision.

After several more questions that easily constitute “rehabilitation”, the juror was allowed to remain on the jury over the defendant’s objection.

Now here’s where you use Control+F. Go to the opinion again, click Control+F and search for this phrase: “I don’t think I would be able to,” You won’t find it.

Now search for the phrase “flat-out”. You won’t find that either. Finally, try “still feel he was at fault”. That will also return that pinging sound that indicates no matches.

How can this be? The opinion makes her seem intelligent and honest and impartial. The article reporting on it makes it seem as though she was clearly not impartial.

The commenters start calling it bogus. I agree. It is bogus on the part of the court. Let’s look at the source of the original article [this is from mid-way]:

Statements by lawyers are not evidence, and Hoffer followed up with the juror, according to court transcripts reviewed by the Weekly.

So it seems that the Weekly went and got copies of the transcripts, which record everything said in court and reviewed them. That’s where they found these quotes1 that somehow didn’t make it into the judicial opinion.

Update: Scott Greenfield has obtained the magistrate’s opinion [PDF] which confirms the OC Weekly’s recitation of the facts. If you read that, you will find that the Weekly’s version is corroborated and the appellate opinion is dishonest. This you can do by repeating the Control+F exercise from above and you will see that the missing quotes magically appear.

So why did this happen? Probably because the quotes omitted from the opinion, but included in the Weekly article are devastating to the logic that permits denial of Velasco’s argument. If you don’t acknowledge the flaws in your position, then your position has no flaws.

You may think this is a preposterous proposition. It is not. You don’t realize it, however, unless you’re an appellate attorney whose appeals have been denied by courts in opinions that make no mention of the facts that are helpful to you, or blatantly misrepresent them.

Or, of course, you’re Mr. Velasco, who was there and heard the juror say these things only to have her remain on the jury to convict.

Because facts in the law aren’t the truth, they’re just what 6 people with immutable biases say they are.


  1. I don’t have the transcripts. Don’t ask me if they’re making it up. I doubt it.

6 thoughts on “Even judicial opinions spin their facts (updated)

  1. Pingback: Faithful To The Story (Update) | Simple Justice

  2. nidefatt

    Absolutely. It’s an awful feeling when you get back an opinion and the court has started plucking facts out of thin air. Sometimes there will be a dissent that points out what actually happened. Happens in SCOTUS opinions, too. My all time favorite being United States v. Salerno, 481 U.S. 739 (1987). It’s a great read.

  3. LJS

    I think every appellate attorney has faced an opinion that cherry-picks facts. In CT one can (and ought) file a Motion for Technical Correction and point out the errors. If the mistake is clear, the State may not oppose and might even agree. Court may change the opinion, but is unlikely to re-think its result.

    One of the judges I worked for was a stickler for factual accuracy. Opinion drafts had to have transcript or record cites in them, which would be checked for accuracy. Woe to the clerk who mis-stated or even shaded the facts. The judge insisted on being as fair as possible in the facts. That ethic and attention to detail should be part of every judge’s routine.

  4. LJS

    I can understand when trial judges make factual errors — they don’t have transcripts and are relying on their notes. Memory is a funny thing; heuristics mean we’ll remember things best that fit our decision, not those that challenge it.

    There’s no excuse in an appeal. The Court has the transcripts. The Judges and Justices have clerks to go through it in detail. They could take the time to do it right. It is troubling when they don’t.

  5. Griff

    Because it’s finally warm and sunny out today and I’m thus inclined to see a silver lining everywhere, my response to this is “at least there isn’t an appellate opinion that the government can cite for the proposition that a juror can be seated after saying she thinks the defendant is guilty and she can’t be fair.”


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