Why Judges Should Not Play the Role of Doctors

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courtroom.jpgEarlier this week, Yolo Judicial Watch monitored a hearing in Judge Timothy Fall’s court. The case involved a man accused of molesting his girlfriend’s daughter.  The girl, 11, was allegedly molested for two years from the time she was 8 until she was 10.

The defense wanted to introduce evidence to the jury that the defendant in this case was suffering from a tick-borne ailment, similar to Lyme’s disease, which caused an infection and pressure on his brain.  In addition, an MRI revealed a cyst in the frontal portion of his brain.

The defense wanted Judge Fall to consider evidence from a neurologist who argued that the two conditions are affecting the front regions of his brain and impacting his ability to control impulses. He is also suffering from memory loss and severe headaches.

Listening to the doctor’s testimony, it remained unclear as to whether they could prove scientifically and medically that the defendant in fact had suffered from an inability to control impulses, as a result of this medical condition .The neurologist likened the condition to Turrets or other involuntary impulse control ailments.

Judge Fall, however, asked if it would cause the impulse to form in the first place. The doctor said it would only prevent the individual from being able to control that impulse.The Judge then likened it to an individual who might see some property that did not belong to him and then steal it out of an inability to control an impulse.  He reasoned that this meant that he may not be able to control himself, but that the condition did not create the intent.

He then allowed the doctor to testify on a very limited basis.  He said it could not be weighed in terms of his intent but rather speak to the issue of willfulness.

As he was making his ruling however, the neurologist, clearly believing he had misinterpreted her assessment and her understanding of the brain and how the condition interacts and interferes with normal brain functions, attempted to raise her hand to correct him.

However, Judge Fall sternly said that he was making a ruling, he was not taking any more testimony. He said it was the lawyer’s job to ask the appropriate questions and once they had rested, he would make his ruling. Furthermore he stipulated that any appeal to reconsider his ruling would have to be made on the grounds that the evidence could not have been available at the time of the hearing.

The problem here is obvious. Judge Fall is not a doctor. He has no medical expertise. Neither has the defense attorney or the prosecutor. Judge Fall, though, was making a ruling based on his understanding of medical evidence that he had no real expertise to evaluate. That is problematic.

The defendant is entitled to a fair defense and a fair trial. Limiting such testimony based on no real understanding of the science or medical condition seems perplexing. 

Often in these cases, Judges will order psychiatric evaluations. It does not seem logical that the Judge would not send this individual to an independent neurologist to make an assessment of the doctor’s claims.

From that standpoint, I think Judge Fall acted inappropriately, even if he was likely within his prerogative as Judge to limit evidence as he sees fit.

That said, and fortunately, in this case, it is likely not going to matter. The case is expected to continue into early next week with a number of experts testifying. However, based on hearing the victim’s testimony, I am not inclined to agree with the defense’s theory that the defendant simply lacked impulse control.

This was not a case of lack of impulse control, rather it was a case of repeated and elaborate initiated contacts with the victim in which the defendant acted as a classic pedaphile. He engaged in sexual acts with an eight year old, repeatedly. These were not crimes of opportunity, where the individual saw a purse lying by itself and could not help but to take its contents.  It was not those of a glutton unable to control appetite. 

No, these were calculated and repeated acts that were complex and sophisticated enough to preclude the defense that he simply could not help himself.  Even  the child testified that he said he knew it was wrong, but could not control himself.

I do not buy the defense’s apparent theory that a typical adult would even harbor these impulses that they would have to suppress. Perhaps I am wrong on that point, but that is how I see it. This individual deserves whatever justice is meted out in that courtroom and after hearing the victim’s testimony and watching the reaction of the jury, I am comfortable that he will get it.

However, with that said, I also believe that every individual is entitled to a fair trial and I hope that Judge Fall’s act of limiting testimony based on an inaccurate understanding of what the doctor’s testimony was will not give an appeals court adequate grounds to overturn a guilty verdict. 

Even child molesters are entitled to a fair trial and hopefully the jury convicts a guilty individual – as we know, at times mistakes have been made in these kinds of cases.

But for this story, the important point is not the particulars of this case, but rather the general principle that a Judge should have had to consult with far more medical experts, in my opinion, to render a fair judgment on what medical evidence would be admissible in court proceedings and I am not comfortable at all with Judge Fall’s judgment or the way in which he went about making it.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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12 thoughts on “Why Judges Should Not Play the Role of Doctors”

  1. E Roberts Musser

    dmg: “But for this story, the important point is not the particulars of this case, but rather the general principle that a Judge should have had to consult with far more medical experts, in my opinion, to render a fair judgment on what medical evidence would be admissible in court proceedings and I am not comfortable at all with Judge Fall’s judgment or the way in which he went about making it.”

    You admit that the defense’s theory of the case sounds extremely implausible. The court docket is extremely crowded and the judge has to limit testimony in order to make sure a defendant’s right to a speedy trial is preserved. You concede the judge has every right to decide what evidence is excluded or to what extent evidence can be used. The evidence in this case was not excluded, just limited in its use to some extent. Furthermore the expert that gave the testimony was paid to testify by the defense, so certainly could have been biased. And you want to fault the judge? IMHO, that seems like a huge stretch…

    dmg: “However, with that said, I also believe that every individual is entitled to a fair trial and I hope that Judge Fall’s act of limiting testimony based on an inaccurate understanding of what the doctor’s testimony was will not give an appeals court adequate grounds to overturn a guilty verdict.”

    What are you saying here, that every defendant has a right to unlimited testimony? If that were the case, no one would get a fair trial bc the courts would be clogged with endless testimony/cases…

  2. David M. Greenwald

    Based on later evidence, I don’t believe the defense’s theory would have cleared him, but we certainly did not know that at the time that Judge Fall made his ruling.

    “The court docket is extremely crowded and the judge has to limit testimony in order to make sure a defendant’s right to a speedy trial is preserved. “

    This point has no bearing. Because of scheduling, they are only hearing a couple of witnesses a day and most of the time is dark. Basically he’s not limiting testimony, just limiting how that testimony can be applied in this case.

  3. E Roberts Musser

    dmg: “This point has no bearing. Because of scheduling, they are only hearing a couple of witnesses a day and most of the time is dark. Basically he’s not limiting testimony, just limiting how that testimony can be applied in this case.”

    Believe me, if the defense were allowed to use the evidence unfettered, the testimony of the expert would have been much lengthier…

  4. Rich Rifkin

    [i]”The problem here is obvious. Judge Fall is not a doctor. He has no medical expertise. Neither has the defense attorney or the prosecutor. Judge Fall, though, was making a ruling based on his understanding of medical evidence that he had no real expertise to evaluate.”[/i]

    I agree the problem in cases of medical or scientific testimony is obvious–but not where you say it is. I don’t think the problem has much at all to do with Judge Fall or any jurist*. The problem in our system is with jurors–ignorant, uneducated and scientifically unqualified jurors.

    Many criminal trials come down to an understanding of forensic evidence. How is someone who could not pass a 9th grade science test supposed to logically decide which “expert” testimony to believe and which to discount?

    A friend of mine (who went to DHS) is now a professor of chemical engineering. He used to work in R&D for Dow Chemicals; and he is an expert on the chemistry of paints. A few years ago, he was called to testify in a civil trial by the defense–a different company which makes industrial paints–to testify about some arcane off-gassing issue with paint. The judge gave him a lot of leeway to explain his answers in full to the jury. (The case was being tried in Alabama.) He told me later that he could tell that most of the jurors had no understanding of chemistry, chemical properties, carbon, etc. And because of that, they didn’t understand the importance of his testimony or the testimony of any of the scientific experts. Their ignorance, he thought, had a lot to do with a wrong verdict in that trial.**

    Yet in our system, we take people off the street to serve on juries, people who are effectively unqualified when a case turns on scientific evidence. Even fairly straightforward criminal cases can turn on the forensics. I still recall the idiotic forewoman from the OJ Simpson double-murder trial, who said afterward that she didn’t think the DNA evidence against Simpson helped to prove his culpability, “because they didn’t even have fingerprints.”

    I don’t have an opinion one way or the other on the Dev case. However, if Dev’s supporters are to be believed, it sounds like Dev got a stupid jury.

    *If Judge Fall was wrong to have disallowed further testimony by that doctor, the appeals court will overturn him in the case of a conviction. That’s an important and viable safeguard in our system. But what safeguard do we have when jurors are stupid?

    **The jury found for the defense and the judge awarded something like $85 million. But a federal appeals court later overturned the verdict.

  5. E Roberts Musser

    rich rifkin: “I agree the problem in cases of medical or scientific testimony is obvious–but not where you say it is. I don’t think the problem has much at all to do with Judge Fall or any jurist*. The problem in our system is with jurors–ignorant, uneducated and scientifically unqualified jurors.”

    Sounds like you are advocating for professional juries, which have their own inherent problems…

  6. Don Shor

    Rich: “And because of that, they didn’t understand the importance of his testimony or the testimony of any of the scientific experts. Their ignorance, he thought, had a lot to do with a wrong verdict in that trial.”

    Then your friend was an incompetent expert witness. I have been on jury trials. The expert witnesses brought in by both sides will contradict each other, will use jargon, and may not have the ability to explain things to a lay audience. We then had to sort out which one we found believable, which one buttressed the case, and to what extent that factored into our final verdict. When we had two traffic-reconstruction engineers coming to different conclusions, we had to use our best judgment about which one had analyzed the information more thoroughly and effectively.

    It is unreasonable to expect juries to have professional expertise or even to be of above-average intelligence. Thus it is the job of the expert witness and the attorney to make the complicated subject understandable to an average person. An expert witness who can’t do that is the problem, not the jury.

    The OJ jurors were extremely frustrated by how they were treated. In and out of the courtroom, constant haggling among the lawyers about what evidence they would see, direct contradictions between expert witnesses, serious discrediting of the LA police evidence-handling. I can tell you that when a jury is shuffled in and out of the courtroom as evidence is debated, we get irritable. I can only imagine the frustration building over 9 months! I would guess that was a factor in their final verdict.

  7. Rich Rifkin

    [i]”Sounds like you are advocating for professional juries, which have their own inherent problems …”[/i]

    No. But what I think we need [i]in some cases[/i] is politically unviable.

    My suggestion is to have the judge — it does not have to be the actual trial judge, but one who is impartial in the case — to conduct the [i]voir dire[/i], such that in cases which involve understanding sciene she eliminates all potential jurors who are, to put it crudely, stupid. I think anyone with a decent level of education and above average intelligence should be able to make a rational decision based on the evidence. I don’t think, however, that all people sitting on juries are smart enough to weigh scientific testimony, particularly when each side pays their own scientific experts.

    [i]”Then your friend was an incompetent expert witness.”[/i]

    He gets called all the time to testify in lawsuits. He is sometimes called by the plaintiff and other times by the defense. If he were incompetent, why are lawyers always hiring him?

    He’s also an excellent classroom teacher (at one of the Claremont colleges). Based on student votes, he was recognized as his college’s “best instructor” for what that is worth. So he is not some science nerd who cannot communicate well.

    The problem in that case, he was later told, had to do with Alabama. There is some kind of corrupt system in that state which produces pro-plaintiff judges and dimwitted juries.

    In his case in Alabama, the plaintiffs, regardless of the poor merits of their case, had a lot of natural sympathy on their side due to the harm supposedly done to retarded kids, supposedly by these chemicals.

    Keep in mind that playing on human sympathy was exactly how Sen. John No-Ethics Edwards made tens of millions of dollars on in his bogus birth defect cases. The science was all against Edwards. But he got stupid juries to nullify that and vote for the plaintiffs because they felt sorry for families with malformed children.

    [i]”We then had to sort out which one we found believable, which one buttressed the case, and to what extent that factored into our final verdict. … we had to use our best judgment about which one had analyzed the information more thoroughly and effectively.”[/i]

    Don, in Alabama, you would never have made it onto a jury in a civil trial. That’s the problem.

    [i]”The OJ jurors were extremely frustrated by how they were treated. … I can only imagine the frustration building over 9 months!”[/i]

    That might have been part of the problem. However, the much bigger problem in that case was the voir dire. Simpson had a brilliant trial consultant named Jo-Ellan Dimitrius (who earned her PhD from the Claremont Graduate School, just down the street from where my friend from Davis High teaches). Dr. Dimitrius was paid to use the voir dire process to weed out anyone with an ounce of common sense and who had hidden characteristis in their personalities which seemingly she alone knew made them good for the defense in that case. And she succeeded brilliantly.

    In my opinion, the lawyers in the case should not be involved in selecting the jury. I would prefer to have a judge conduct the voir dire, so that he only eliminates jurors for good legal reasons. The key, of course, is that the judge has to be neutral. If he is biased, my idea is even worse than what we have now.

  8. Rich Rifkin

    CORRECTION: “… to use the voir dire process to weed out anyone with an ounce of common sense and [b]to weed in anyone[/b] who had hidden characteristics in their personalities which seemingly she alone knew made them good for the defense in that case.”

  9. E Roberts Musser

    rich rifkin: “In my opinion, the lawyers in the case should not be involved in selecting the jury. I would prefer to have a judge conduct the voir dire, so that he only eliminates jurors for good legal reasons. The key, of course, is that the judge has to be neutral. If he is biased, my idea is even worse than what we have now.”

    Believe me, judges bring their own biases into the courtroom…

  10. Don Shor

    “If he were incompetent, why are lawyers always hiring him?”

    Because he has managed to get his name into the great cash cow of any professional: the interconnected attorney rolodex of professional witnesses.
    I have been a professional witness once, and was stunned at what a racket it is. I got paid $100 an hour to review a landscape design and a couple of insurance estimates for the value of a landscape destroyed in a fire. The attorney called me because he heard me on a garden talk show on the radio, which should tell you something. I do have the credentials, and I guess I did fine; the case was settled before trial. Being an expert witness is a very lucrative sideline for many professionals, but I felt very unsettled about the whole process.

    In that particular trial, your friend was not a competent expert witness. You keep talking about how stupid the jurors were. Have you ever been on a jury trial? Your fellow jurors tend to be about the same range of people you’d expect: some smarter than others, differing abilities to understand and process information. A good college instructor will not necessarily communicate well with the general public. In one case, we found a veteran highway patrol officer lacking in credibility, largely because of his demeanor during testimony. That wasn’t the only factor in our deliberations, but it was one.

    In each case I watched as the attorneys carefully selected out certain demographic and personality types via voir dire. That is standard practice regardless of whether they have fancy jury consultants. It is just a foregone conclusion that the amiable nursery guy will be selected, while the opinionated newspaper columnist likely will not. I see no reason that the judge would do a better or worse job than the current system whereby competing interests are balanced by having the attorneys use voir dire. The juries that I’ve been on have been heavy on public employees, retired folks, and (because I’m in Solano County) military employees. But each has been a cross-section of the community, in spite of the best efforts of the attorneys to stack the jury.

    Many things come in to play during deliberations. Once a jury has gone in the jury room, they can do almost anything they want. You may think that the evidence is all that is considered, but much has to do with how systematically it is considered and emotional factors are significant. Overall my lasting impression from serving on two jury trials is that the system works, and that it is a remarkable civic experience. I get irritated when I hear people trying to get out of jury service. It is a hassle, but the broader the jury pool the better the juries.

  11. E Roberts Musser

    don shor: “Overall my lasting impression from serving on two jury trials is that the system works, and that it is a remarkable civic experience. I get irritated when I hear people trying to get out of jury service. It is a hassle, but the broader the jury pool the better the juries.”

    I generally agree. However, I also know that the jury only knows what it is allowed to know, and there are times when juries don’t necessarily get the full picture as much as they should. To some extent, I think that happened in the O.J. case. Trials are a human construct, and are certainly subject to human error. That said, our jury system is still better than any other system in the world. Is it perfect? No. Is it often imperfect? Too often…

    And sometimes mistakes are made that are just a natural consequence of circumstances. I remember a Washington D.C. rape case. The jury sentenced the wrong man bc of misidentification by the victim. But the newspaper put a picture in the paper of the actual perp and the vindicated accused who had served about two years of his sentence. It was uncanny, you would have thought the two were twins, right down to their perfect goatees!

    It was such a tragic miscarriage of justice because the innocent accused lost two years of his life – in prison – and his marriage. His wife divorced him (understandably) upon conviction. He also lost a career as a college educated engineer. There was proof from 38 witnesses that the accused had been at work the day of the rape, but the jury believed the rape victim’s ID instead. The accused was African-American. I don’t know what ethnicity the victim was, nor the make-up of the jury. But if the trial occurred in Washington D.C., I suspect the jury was comprised of lot of African-American jurors.

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