Tuesday, March 3, 2020

My "Uncle Henry"--Henry J. Abraham, 1921 - 2020

Henry J. Abraham, University of Virginia Professor Emeritus, passed away last week at the age of 98.
My Ph.D. mentor--and adopted "Uncle Henry"--was unconditionally cherished by so many of us over his more than 50 years of teaching. All of us in the "Tribe of Abraham" are heartbroken.
I'm so glad I spent time with him last month.

A few recent appreciations:
A Life Uncommon (https://bulletin.kenyon.edu/feature/a-life-uncommon/);
'All that is evil'  (https://www.richmond.com/news/local/government-politics/all-that-is-evil-white-nationalist-rally-revived-boyhood-memories/article_c492eb38-6afa-5332-9356-df98d0763973.html);
A Tribute to Henry J. Abraham  (https://drive.google.com/file/d/1ht6Mv2KwqPGv3_rgi4PvSw480ajEw6pw/view?usp=sharing);
Henry J. Abraham   (https://en.wikipedia.org/wiki/Henry_J._Abraham)


Henry J. Abraham
August 25, 1921 - February 26, 2020

Professor Henry J. Abraham passed away February 26, 2020 at the age of 98 in Charlottesville, VA. He was born August 25, 1921, in Offenbach am Main, Germany, the older son of Frederick and Liesel Kullman Abraham. He attended elementary schools there and the initial stages of high school at the Realgymnasium (Philantropin) in Frankfurt am Main. When he was 15, his farsighted mother, over the strong opposition of his father, determined that there was no safe future for him in Nazi Germany. She decided to send him to the United States. Wanting him to have a trade prior to his departure, she arranged for an apprenticeship as a printer which he completed while attending school.

He left for the U.S alone in April 1937 and journeyed to Pittsburgh, PA where his mother’s sister was a governess/housekeeper for two orphaned young women. But he could not stay with her. He attended and finished high school in Pittsburgh. In 1939 he was joined by his parents and beloved brother, Otto who predeceased him. Because his father’s health was broken as a result of his incarceration in the concentration camps of Sachenhausen and Dachau, following Kristallnacht in November of 1938, Henry was unable to go to college and commenced work as a stock clerk for May Stern & Co., followed by a stint as a bookkeeper for a scrap iron firm.

In 1942 he was drafted in the United States Army and became a U.S. citizen in 1943. After basic training in Fort Eustis, VA., he entered the army specialized training program and was sent to Kenyon College for language training. Following the end of the program, he was assigned to the Signal Corps and ultimately to the G-2 training base at Camp Ritchie, MD. From there he was sent overseas and saw American army service in England, Belgium, Holland, France and Germany, initially as an interrogator of enemy prisoners of war and ultimately as a member of the 6889th Berlin Documents Center, which was charged with the location, analysis, distribution, and interpretation of principally German documents. The center had a direct line to the U.S. Supreme Court Justice Jackson’s office at the Nuremberg War Crimes Trials in 1945-46. Henry was discharged in the spring of 1946 and was determined to enter college under the G.I. Bill.

He matriculated Kenyon in 1946, and having completed two summer schools at Columbia College, received his undergraduate degree from his beloved Kenyon first in his class, summa cum laude, Phi Beta Kappa, with Highest Honors in Political Science in 1948. He received his M.A. degree in Public Law and Government from Columbia University in 1949 and his Ph.D. from the University of Pennsylvania in 1952, where he had joined the faculty as Instructor in Political Science in 1949 at the annual salary of $2,400. Rising through the ranks, he became a full professor in 1962, having received Penn’s first social science undergraduate teaching award in 1959, prior to spending a year in Aarhus and Copenhagen, Denmark, with his family on a Fulbright scholarship. In 1954 he married fellow Penn student Mildred Kosches of Woodmere, N.Y. with sons Philip and Peter arriving in 1957 and 1962.

In 1972 Henry and his family left Penn and Philadelphia for Charlottesville, VA, where he became a chaired professor at the University of Virginia in Government and Foreign Affairs retiring in 1997, but he continued to teach in a program for 55 plus year old adults in courses on his specialty, the U.S. Supreme Court. Other than his family, teaching was the love of his life. The dedication he evinced vis-à-vis his circa 25,000-30,000 students over more than six decades, resulted in an abiding relationship, among which a group of 25 with whom he was close to the end, called itself “The Tribe of Abraham.”

Henry’s teaching prowess was recognized in a host of ways. He received the University of Virginia’s highest award, the Thomas Jefferson Award, the first Lifetime Achievement Award of the Organized Section on Law and Courts of the American Political Science Association, the University of Virginia’s Alumni Association Distinguished Professor Award, the Distinguished Service Award of the Virginia Social Science Association, the Kite and Key Service Award, the “Z” Society’s Distinguished Faculty Award, the “IMP” Society’s Outstanding Contribution to the University Community Award, the Templeton Honor Roll for Education in a Free Society Award and this non-native American received the 2007 Annual Award for Americanism from the Daughters of the American Revolution.

Henry was a prolific author in his field, concentrating on books about the nature of the judicial process, in general, and the U.S. Supreme Court, in particular. He wrote 13 books, all of which were in multiple editions, ranging from two to ten. He also penned some 125 chapters in books and professional articles. He received honorary degrees from Kenyon College, the University of Hartford, Knox College, St. Joseph’s University and Old Dominion University. During a 30-year period from the 1960’s to the 1990’s, the agencies of the U.S. Department of State utilized his services as a lecturer throughout the world in 65 lands, including: The United Kingdom, the Netherlands, France, Germany, Italy, Denmark, Norway, Sweden, Finland, Iceland, Canada, Peru,  Bolivia, Brazil, Argentina, Paraguay, India, Iran, Japan, China, Singapore, Taiwan, the Philippines, Korea, New Zealand and Australia. In the U.S. he was a visiting professor at Swarthmore College, Columbia University, the University of Colorado, the University of Louisiana at Shreveport, the University of Richmond, the City University of New York, and he lectured throughout the states.

He received grants and fellowships from the Bradley Foundation, the Rockefeller Foundation, the Earhart Foundation, the American Historical Foundation, the American Political Science Foundation, the American Council of Learned Societies, the National Science Foundation, the Social Science Research Council, the American Philosophical Society and the National Endowment for the Humanities.

Professor Abraham is survived by his wife of 66 years, Mildred; their sons Philip (Janet) and Peter (Anne), grandchildren Benjamin, Lauren, Marnie and Liesel. Interment at Monticello Memorial Gardens was private. A date for a memorial service will be announced later. In lieu of flowers, it was Henry’s wish that any contributions be made to one of the following: Book Baskets at bookbaskets.org; the Antidefamation League at  adl.org; The United States Holocaust Memorial Museum at ushmm.org; The American Society of Yad Vashem at yadvashemusa.org or Kenyon College at Kenyon.edu/give-to-kenyon/

Friday, January 3, 2020

Some Late 2019 Commentary: Gorsuch, Kavanaugh, Indicting Trump, Cuomo's Court

To begin the New Year, here are a few appearances late last year on radio, TV, and podcast, commenting on a variety of constitutional and judicial matters of national and state interest.

In the coming posts, we'll tend to some other overdue matters.
Meanwhile, wishing all a very happy, healthy 2020!

December30, 2019: Cuomo’s reshaping of the Court of Appeals
In his nine years in the Governor’s Office, Andrew Cuomo has reshaped the state’s highest court. Vin Bonventre, Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School and Editor of the New York Court Watcher blog, shared his insights on the changing dynamic at the Court of Appeals.
As the impeachment hearings continue in Washington, New York has been at the center of President Donald Trump’s legal woes. From Federal cases concerning his family charity to investigations of business dealings with banks by State Attorney General Leticia James, the majority of his legal battles are being fought hundreds of miles from Washington—in the Empire State.
On this episode of New York Now, host Ray Suarez sits down with two Constitutional law scholars—Paul Finkelman of Gratz College and Vincent Bonventre of Albany Law School—to discuss what the future may hold for the president’s legal troubles, and what role New York state might play in that future.
New York State Bar Assn Podcast: Miranda Warnings
Albany Law Professor Vincent Bonventre returns to discuss the judicial records of Associate Justices Neil Gorsuch and Brett Kavanaugh and the tribal voting nature of the current Supreme Court.
Professor Bonventre then gives us a primer on what types of cases he expects the Supreme Court to hear this Fall, including some hot button issues like abortion, gerrymandering, the death penalty, and immigration.
Make sure you stay tuned to the end as Professor Bonventre continues his tradition of singing a few lines from one of his favorite crooners, Bobby Vinton.
Miranda Warnings is hosted by NYSBA's 118th President David Miranda
By Nick Reisman 
President Donald Trump has kept his tax returns private, breaking with tradition that candidates for president release them. But now, a subpoena to an accounting firm with the taxes could lead to them being released to New York prosecutors.
Albany Law Professor Vin Bonventre says the question over whether the president can be prosecuted in a criminal case is unclear.    
"Anybody tells you they're certain one way or the other is just speaking nonsense. There isn't anything in the constitution that suggests one way or other the president can be prosecuted or can't be prosecuted while in office," Bonventre said.
In similar cases, like when the court forced President Nixon to turn over recorded conversations in the Oval Office, those help provide a guide.  
"Can we really allow all 50 states to be interfering with the president doing his duties? That may be too much," Bonventre said.
Governor Cuomo this month suggested President Trump changed his residency from New York to Florida to avoid having his taxes released.  
"My hypothesis is Mr. Trump changed his residence for legal purposes," Cuomo said.  
But Bonventre says that's unlikely.  
"That shouldn't have anything to do with it. If one person commits a crime in one state and then goes to another state, that doesn't immunize them from prosecution," Bonventre said.
The president's legal team has said he is immune from prosecution while he is in office.

Sunday, August 25, 2019

Trump's Justices: Gorsuch to Date (Part 2)

In the previous post, we saw how studies of Neil Gorsuch's judicial record prior to his nomination by President Trump for the Supreme Court showed him to be among the most politically conservative members of the federal judiciary. We also saw how his record immediately following his appointment, the last couple of months of the Supreme Court's 2016-17 term—the spring of 2017—reflected the very same strong politically conservative leanings.

In fact, together with Justice Clarence Thomas, his record on politically charged issues was the most politically conservative on the Court. Indeed, 100% politically conservative voting in cases involving the death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and similar politically divisive matters. Significantly, Gorsuch's 100% politically conservative voting record contrasted sharply with the 41% conservative decisional record of the Court as a whole. (See Trump's Justices (Part 1): Gorsuch to Date.)

Now what about Gorsuch's voting record for the next two terms on the Court—2017-18 and last term, 2018-19? Specifically, how did his voting record compare to that of the Court's other strongly politically conservative members, Justices Thomas and Samuel Alito, and to the Court as a whole? Let's take a look at the very next term, Gorsuch's first full one on the Court, the 2017-18 term (click to enlarge):
The politically charged issues confronted by the Court during the 2017-18—and voted on by Gorsuch—included Trump's travel ban (again), immigrant rights, abortion rights, gay rights, union representation, worker rights, voting rights, gerrymandering, search and seizure protections, and international human rights. In virtually every case, Gorsuch voted for the politically conservative position.

In fact, in some cases, Gorsuch took a position that was even more politically conservative than the already conservative majority or dissenting opinions. For example, in the Masterpiece Cakeshop case, where the bakery refused to create a cake for a same-sex marriage celebration, the majority of the Court ruled for the bakery on very narrow grounds. It held that the Colorado civil rights commission's decision, that the bakery was guilty of sexual orientation discrimination, was tainted by the commission members' explicit hostility to the baker's religion--comparing it to Nazi hatred of the Jews. In short, the Court majority ruled that the baker did not receive a fair hearing. But not that businesses were free to violate state anti-discrimination laws, even for religious reasons.

That decision of the Court was inadequate for Gorsuch. He authored a separate concurring opinion making the claim that the bakery did not actually engage in any discrimination at all—unlawful or otherwise. Gorsuch's rationale? The bakery would not create a same-sex cake for any couple, whether same-sex or opposite-sex. So the bakery was treating everyone the same. Not kidding!

(You know, like the old anti-miscegenation laws did not really discriminate against anyone. Everyone—black or white or Asian—was required to marry within their own race. So those laws treated everyone the same. Gorsuch's argument was reminiscent of that nonsense.)

Let's finish this post by taking a look at the ideological voting spectrum of the entire Court. Here it is (click to enlarge):
As the graph shows, Gorsuch's voting record was not only the most politically conservative on the Court, other than that of Justice Thomas, but it was also significantly more so than that of Chief Justice Roberts and the decisional record of the Court as a whole.

To be sure, the voting records of the Court's four liberal Justices, were at least as politically liberal as Gorsuch's record was politically conservative. But in nearly one-third of the cases, the Court as a whole joined the liberals, In a full one-quarter of those cases, the Chief Justice did. Gorsuch virtually never did—in fact, it was only one case. [I.e., Sessions v. Dimaya, involving the meaning of "crime of violence" as a basis for deporting immigrants.]

So once again, Justice Gorsuch's voting record on the Court—this time for the 2017-18 term—mirrors the studies based on his pre-appointment record as a federal appellate judge. In the next post, we'll look at Gorsuch's record in the next and most recent term, 2018-19.

Wednesday, August 7, 2019

Trump's Justices (Part 1): Gorsuch to Date

President Trump's first appointee, Neil Gorsuch, took his seat on the Supreme Court in the spring of 2017. By that time, judicial scholars--both political scientists and law professors--had studied his record on the federal appeals court from which he was elevated.

Based on his voting patterns as an appellate judge, Gorsuch's position among the other federal judges on the ideological spectrum had been mapped. Similarly, once he was nominated, his ideological place on the Supreme Court was predicted.

A 2016 study, sponsored by the University of Chicago, compiled and compared voting data on federal judges. A graph based on that data was published in the New York Times the following year when Gorsuch was nominated. It placed his record on the far right, politically conservative side of the federal judiciary. Here's that graph (click to enlarge):

Another study by a team of judicial scholars, led by Lee Epstein and published shortly following Trump's election, inserted Gorsuch among the sitting Justices on the Supreme Court's own ideological spectrum. Gorsuch was placed among the Court's most politically conservative members--between Justices Clarence Thomas and Samuel Alito. Indeed, he was determined to be even more politically conservative than the Justice he replaced, Antonin Scalia. Here's that graph (click to enlarge):
Source: Lee Epstein et al., President-Elect Trump
 and his Possible Justices
In yet another study, this one completed the following year, Gorsuch's appellate record again placed him among the Court's most politically conservative Justices. In fact, this study estimated that his policy preferences would position him at the far end of the Court's right wing. Here are those graphed findings (click to enlarge):
Source: Ryan Black, et al., Estimating the Policy
Preferences of Judge Neil M. Gorsuch
It was thus widely expected, among those who closely study such things, that Gorsuch would be a very politically conservative Justice. Not a judicial restraintist. Not a stickler for stare decisis. Not one who defers to the other branches or to the states. Not a strict constructionist. Not a faithful adherent of previously settled constitutional principles. Not a philosophical conservative in a classic libertarian sense. But a conservative in the common contemporary political sense.

In short, how would conservative Republican politicians be expected to vote on the controversial issues of the day? And how closely would Justice Neil Gorsuch's voting align with conservative politicians on those issues?

Right from the start, in his first few months on the Court--from the time of his appointment in April of 2017 to the end of the 2016-17 term that spring--Gorsuch did cast votes on many such issues. The death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and other politically charged issues among them.

What kind of record did he compile at the very start of his Supreme Court career? How did his record compare to that of other conservatives on the Court in that spring of 2017? Well, take a look (click to enlarge):

Justice Gorsuch's voting record, in his very first weeks on the Court, was at least as politically conservative as the judicial studies had predicted. From his appointment in April 2017, thru the end of the Court's term in the closing days of June, he compiled a voting record which, together with that of Justice Thomas, was the most conservative of the Justices.

On every one of those previously mentioned issues confronted by the Court in those final weeks of the 2016-17 term, the Justices were divided and Gorsuch, like his colleagues, chose sides. And on every one of those issues, he chose the politically conservative position--or the most politically conservative position when there was more than one.

So, for example, on the death penalty issue, he supported the execution. On campaign finance restrictions, he was against them. Gun rights, supported them. Gay rights, against them. Workers' rights, against them. Church and state, argued for lowering the wall of separation even more than the Court majority and other conservative Justices. Trump's travel ban, argued for upholding it to an even greater extent than the Court majority and other conservative Justices.

Indeed, as displayed in the graph, he took the politically conservative side--including the most politically conservative position among his colleagues--on those and every other politically charged issue that came before the Court in that spring of 2017 immediately upon his appointment.

And note well how starkly Gorsuch's politically conservative record on those politically charged issues contrasts with the record of the Court as a whole--100% politically conservative versus 41%. When the Justices divided between politically conservative and liberal sides, Gorsuch supported the conservative position. Even when the Court majority rendered a politically conservative decision, Gorsuch would sometimes argue for an even more politically conservative resolution.

In the next post, we'll take a closer look at some of this, including how Justice Gorsuch's voting record compared to that of all of his colleagues--not just the most conservative ones. And we'll look at his voting record in the following two full terms that he's been on the Court, 2017-18 and the term that just finished, 2018-19.

Wednesday, March 27, 2019

NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities

In the last post, we looked at two dissents that protested majority decisions at New York's highest court that overturned convictions because of errors having nothing to do with guilt or innocence, and where there was no suggestion that the alleged error by the trial judge had caused any prejudice to the defendant. (See Part 4b.)

Now we turn to the other two previously previewed dissents that protested majority decisions that upheld convictions, despite serious questions about guilt, and where the Court of Appeals would not even permit a hearing to consider actual innocence.

Again, cheers for those dissents as glimmers of hope amidst dismay at the majority decisions.

People v. Tiger (2018) (Wilson, J., dissenting)
People v. Thibodeau (2018) (Rivera, J., dissenting)
In both Tiger and Thibodeau, the defendants sought post-conviction relief on the basis of actual innocence. They each sought a hearing, pursuant to New York's Criminal Procedure Law, to present evidence that had not been previously available or previously considered and that raised serious questions about guilt. In both cases, the Court of Appeals majority would not even permit a fact-finding hearing to assess that evidence and consider the claims of actual innocence.

In Tiger, by a 5-2 vote, the Court held that a guilty plea was an absolute bar to a subsequent innocence claim. According to the majority, "a voluntary guilty plea is inconsistent with a claim of factual innocence."

The majority rejected the request for an innocence hearing despite the circumstances which led the defendant to plead guilty. Despite the defendant's exoneration of any wrongdoing in a subsequent civil case. And despite the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence that justified a hearing.

Judge Wilson
Judge Rowan Wilson emphatically decried the rigidity of the majority's ruling and its seeming indifference to the injustices it perpetuates:
Natascha Tiger pleaded guilty but is innocent. 
Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 
Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury. 
Our modern criminal justice system "is for the most part a system of pleas, not a system of trials."...We know that some completely innocent people plead guilty. In 2016, a record-setting 166 people were exonerated nationally. Of those, 74 exonerees, or 45 percent, were convicted based on guilty pleas. Of the nearly 2,000 individuals who were exonerated between  1989 and October 2016, 17 percent pleaded guilty....Research shows that innocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial, the fact that a plea will offer a release from pre-trial detention if the offense is low-level, and concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 
Relatedly, we also know that innocent suspects falsely confess...More than 20 percent of known exonerations for murder were at least in part due to false confessions... Consistently with the research on guilty pleas, the research on false confessions shows that "[t]he most potent psychological inducement is the suggestion that the suspect will be treated more leniently if he confesses and more punitively if he does not."  
The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But "conservation of judicial resources" does not appear alongside "life, liberty and the pursuit of happiness."  
Former Chief Judge Jonathan Lippman described our courts' mission thus: 
"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 
Today's decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not. [Citations omitted throughout.]
To which I say, Amen!

In Thibodeau, in an unsigned memorandum for a bare 4-3 majority, the Court of Appeals rejected another substantial actual innocence claim on the same day. The defendant's post-conviction motion was denied by a hearing judge, despite considerable new evidence that others actually committed the kidnapping for which the defendant was convicted many years earlier. The hearing judge ruled that the evidence didn't even raise a "probability" that the verdict at trial would have been "more favorable." The Court of Appeals majority upheld the ruling below on the ground that it was not an abuse of discretion.

Judge Rivera
Judge Jenny Rivera's dissenting opinion set forth in detail the new evidence. In her view and that of two other Judges who joined her, that evidence severely undermined a conviction that was somewhat troubling from the start, and it persuasively demonstrated much more than a mere "probability" that others were guilty and the defendant innocent:

Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocence. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim[, and he] asks for an opportunity to present this third-party culpability evidence to a jury. 
Defendant presented evidence that three [identified] men...abducted the victim..killed her, and disposed of her body by cutting it up and sending it to Canada in a vehicle being scrapped. The evidence consisted of testimony by a multitude of witnesses to these three men's inculpatory statements, as well as documents that corroborated their guilt and defendant's innocence. 
At the hearing on the motion, defendant presented additional testimony by various witnesses implicating [the three men] in the abduction, including confessions by these three to the victim's abduction and murder. 
[D]efendant presented an exhaustive amount of corroborating evidence for the confessions. [Inter alia,]several witnesses have testified to statements by these three declarants that not only implicate them in the victim's disappearance, but constitute admissions of guilt of kidnapping and murder. [Moreover, t]here is no evidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant. The witnesses are a variety of ages, occupations, and levels of closeness to the three declarants. The incriminating statements themselves are also varied. At times, the declarants explained what had occurred...Other times, the statements were made as a blatant commentary that the declarant was immune to prosecution because the victim would never be found and the wrong persons—the Thibodeau brothers—were blamed for the crime. 
Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest. The quantity of overlapping statements also lends further support for their admission. 
Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see CPL 440.10 [1] [g]). It is also noteworthy that the People's trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the store at the time the victim disappeared, and no forensic evidence was found at defendant's home or in [the] van linking defendant to the victim. It is difficult to imagine these statements would not have "added a little more doubt to the jury's view of the evidence" such that there would have been enough uncertainty as to defendant's guilt to tip the scales in his favor. [Citations omitted throughout.]
It is difficult to imagine, as Judge Rivera wrote, that this new evidence would not have added uncertainty and tipped the scales. And difficult to imagine why a majority of the Judges would not err on the side of allowing a full post-conviction review of these two very possibly wrongful convictions. At the least, these cases were very close. Why err on the side that might well be perpetuating grievous injustice?

As for these two dissenting opinions--like those reviewed in the preceding post and like all thoughtful, ardently felt dissents--they gave voice to serious concerns about the majority opinions and  they demonstrated an independent vigilance that should always be welcomed--whether we happen to agree or disagree with the Court's decisions.