20 February 2006

And Black Was Declared White.

One of the odd features of the American legal system is that it calls upon appellate judges to determine what trial judges were thinking (often without saying so aloud) in a case from a transcript, even though the judges are almost always available to say what they were really thinking. This is largely an artifact of the jury system, since, unlike judges, it generally isn't possible to track down jurors, because even if they could be found most jurors don't want to be tracked down after they have done their civic duty, and it might be unfair to rely on what they have to say in the rare instances when the can be found, to the prejudice of those who can't be found. But, since sentencing decisions are very rarely, if ever, made by juries (at least in the federal and Colorado systems), this rule doesn't always make a lot of sense in that context.

A particularly notable example of an appellate court getting what the trial judge was thinking wrong, and then ignoring evidence to the contrary, is found here.

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