very edition of CALJIC (California Jury Instructions, Criminal) includes a page that memorializes the members of the committee that worked on the book. The page is captioned, "The Committee on Standard Jury Instructions, Criminal of the Superior Court of Los Angeles County, California." That caption should be reworked. It should say, simply, "Saints."[1]
The Sisyphi who struggle to push the rock of jury instructions up the shifting dunes of judicial review certainly merit sainthood -- as do their counterparts on BAJI and the Judicial Council's pathologically courageous Task Force on Jury Instructions, who are endeavoring to overhaul and revamp the entire instructional system. For these even-more-latter-day saints, the more appropriate classical allusion might be the Augean stables, but I'm afraid two Greek mythology metaphors in the same paragraph will cost me my Turkish readership[2], so we'll just agree they've volunteered for a crummy job for which none of us is grateful enough, and let it go. OK?
That being said, I feel compelled to lodge a quibble. While most of the criminal defense bar probably feels I'm entirely too deferential to CALJIC, there is one instruction I think needs some work.
CALJIC 2.92 is titled "Factors to Consider in Proving Identity by Eyewitness Testimony." It explains that there are a number of factors a juror should consider in evaluating eyewitness testimony, and lists some of them. Those considerations include the quality of the eyewitness's opportunity to observe, the stress to which the witness was subjected at the time of the observation, the eyewitness's ability to make identifications on other occasions, etc. The list inexplicably omits consideration of whether the witness has acted like an idiot.
This lacuna in CALJIC 2.92 occurred to me today when I read a story on CNN.com that began, "California fish and game officials are investigating a San Diego-area man who kept a rare 500-pound pygmy hippopotamus as a pet in his suburban back yard for at least a decade."
It turns out you are not allowed to keep hippopotami in your back yard. There seems to be some law against it, enforced by the Fish and Game people.
I don't know which surprises me more: the fact there are people who violate this law or the fact that someone correctly foresaw that there could ever be a need for a law regulating hippos in back yards.
How do we get laws like that? How do you convince legislators such laws are necessary? I mean, if I were a legislator and my assistant told me there was someone waiting in the lobby to lobby me[3] about hippos in back yards, I'd chastise her for failing to listen carefully. I'd suspect she was taking messages on a cell phone.
But as unfathomable as it is to me that we have such a law, and as astonished as I am that someone actually violated it,[4] what really concerns me is the fact it took Fish and Game 10 years to find this guy. Ten years! How can a 500-pound hippo be out there for 10 years without being seen?
Let's review. The pygmy hippo weighs 500 pounds.[5] This is Shaquille O'Neal with Barry Bonds on his back. That is very big. She was in the guy's back yard. For a decade. She's a HIPPOPOTAMUS.
How tough a case can this be? Barney Fife could have found her in less than 10 years.
And she was not a secret. "Neighbors in Escondido, about 30 miles from San Diego, said they had known about the hippo for years but had never seen it." How did they know about it, you ask? (Go ahead, ask. The answer is in the next paragraph.)
"I know he used the hippo manure on his garden," said Bill Ritcher. "It can smell pretty dang bad."
Hippo manure! There was a man living next door who could identify the odor of hippo manure, and still it took 10 years to find this animal. I would have thought it would take 10 years to find a place you could HIDE a smelly, 500-pound, chiefly aquatic African herbivorous mammal having thick, dark, almost hairless skin, short legs with four toes and a broad, wide-mouthed muzzle.[6]
This is why I feel CALJIC 2.92 is inadequate. Sometimes there seems to be a disconnect between people's eyes and their brains. Sometimes they just don't seem to see what it should be very difficult not to see.
The instruction should recognize this fact by telling the jury, "In evaluating an identification, you may consider the fact that sometimes people act like idiots. Sometimes their eyes see things, but their minds don't."
Exhibit B in favor of this modest proposal is an Associated Press story you might have seen. It says, "A murder suspect who escaped from jail 11 years ago broke out again using the same hole in the same fence."
That's right. The same hole.
"David Ivy, 30, escaped May 16 by crawling through a hole in a fence around an inmate recreation area on the Shelby County [Tenn.] jail roof and climbing down a drainpipe. Authorities describe Ivy, who is 5-feet-8 and 150 pounds, as dangerous and likely armed." They could have added, "and probably laughing hysterically."
This proves my hypothesis. The guy is a murder suspect. We're not talking about some small-time hippo-mongerer here; the guy is an alleged murderer. He escaped in 1991 -- when George Bush SENIOR was still President and priests were still allowed in the boys' gym -- through a hole in the fence.
They caught him. They put him back in the same jail. They knew he was dangerous and they knew he was hard to catch -- hell, it took 11 years to round him up the last time he got away. Pygmy hippos are easier to spot than this guy was.
And they not only knew he had escaped before, they knew how. He crawled through a hole in the fence. They knew where the hole was.
But the hole was still there. He escaped through it. Again. According to the Associated Press, "'You just scream when you hear something like that,' said chief jailer Marron Hopkins."
Obviously, jail officials suffered the disconnect I've been postulating CALJIC needs to address. Obviously they saw the hole. Obviously, they did not fix it. Obviously, they acted like idiots. Sometimes that happens.
But the real proof that I'm right about the fact that sometimes we can look at something and just somehow fail to process the message our eyes send to our brain is the fact that OTHER INMATES HAD NOT ESCAPED THROUGH THE HOLE. Unless the Shelby County Jail has been hemorrhaging inmates for 11 years and nobody noticed it -- which, come to think of it, would prove my point just as well -- hundreds, probably thousands of inmates have looked at that hole in the fence and failed to recognize it as a stairway to heaven.[7]
Can you imagine? "I tell ya, Rocco, I'm goin' crazy in this hell hole. I gotta get out. I gotta. I can't stand it any more. There must be a way. Anybody ever escaped from this jail?"
"Yeah, one guy."
"How'd he do it?"
"Crawled through that hole over there."
"No kidding. That one right there?"
"Yep."
"Just crawled right through it?"
"Yep."
"They ever catch him?"
"Nope."
"Hmm. What's the movie tonight?"
So it's time for the CALJIC folks to amend CALJIC 2.92 to remind juries that sometimes people just don't process the information provided them by their eyes, and allowance has to be made for this kind of idiotic behavior. We can call it the Bedsworth Pygmy Hippo Jailbreak Rule. With a name like that, it'll be a lot easier to remember than most rules of law. On the other hand, I've spent years resisting references that tend to link me with hippos. And if we adopt this rule, my name will forever be conjoined with mental aberrations, another tendency that already seems to me to be spreading at an alarming rate.
Maybe this isn't such a good idea after all. In the immortal words of the great legal philosopher Emily Litella, "Never mind."
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Contributing writer William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana. He writes this column to get it out of his system. He can be reached at William.Bedsworth@jud.ca.gov.
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[1] At the very least, a comma should be added after the word "criminal." As written, it suggests that the committee is the "Criminal of the Superior Court." That's really unfair.
[2] And completely exhaust my inventory of pretentious mythological references.
[3] Yeah, the whole "waiting in the lobby to lobby me" thing is a little awkward. I tried "waiting in the waiting room to lobby me," but it didn't seem like much of an improvement, and I only have so much time to put into these things.
[4] Actually, "astonished" probably overstates my reaction. I live, after all, in the epicenter of American Libertarianism. I'm in the process of formulating a theory that for every law enacted in California, there is an Orange County Register reader who is violating it -- purely as a matter of principle.
[5] Pygmy is obviously a relative term, here.
[6] Surely you didn't think I was turning out column after column without the aid of a dictionary.
[7] Or, in this case, a drainpipe to Beale Street.
