Gore vs. the Supreme Court: The justices and the 'CSI effect'

By Dana Milbank
Wednesday, October 13, 2010

In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.

These are their stories -- as acted out by the justices of the Supreme Court.

Ostensibly, the robed ones of the High Court were hearing a habeas corpus case Tuesday morning, exploring the finer points of the right to effective counsel. In practice, they cared more about corpus than habeas; the oral argument could have served as a pilot for "Law & Order: SCOTUS Unit."

"If someone were moved from the bed, taken to the living room couch, you would have expected to see a trail of blood from the bed, and there wasn't that," said Justice Ruth Ginsburg.

Chief Justice John Roberts asked whether "he could have dragged him from the pool to the couch because there were drops along the way."

"Let's say there really was a gun fight, and Klein [the victim] fell someplace else," speculated Justice Samuel Alito. "Why is it so valuable to him to move Klein's body?"

Justice Sonia Sotomayor posed a hypothetical in which "one of those blood spots absolutely had to be Klein's near the bedroom."

"Why wouldn't he wipe up the blood?" Justice Antonin Scalia wanted to know. "I mean, what good is it to simply put him on the couch when you leave a pool of blood showing that that's where he was shot?"

In legal circles, there's a hot debate over whether a "CSI effect" has taken hold of juries, who expect prosecutors to convince them with the forensic certainty they do on TV. Tuesday's hearing indicates a different sort of CSI effect has gripped the justices, who seemed to be amusing themselves with gore.

If the justices seemed a bit too fascinated by the bloody details of the 1994 murder case before them -- the word "blood" was uttered 60 times in the hour -- they should perhaps be forgiven. The Supreme Court of popular imagination is one where high constitutional principles are decided in ideologically charged 5-4 rulings. But as ScotusBlog has noted, only 19 percent of cases last term were of the 5-4 variety. Far more often, the justices are dealing with technical, if not tedious, points of law.

In Tuesday's case, Harrington v. Richter, there was no ideological split as the justices decided what to do about Joshua Richter, convicted of killing Patrick Klein on a couch in the home of Richter's marijuana dealer. Now the accused is arguing that he didn't have competent counsel because his lawyer didn't seek forensic blood evidence that might have helped him.

After years in state and federal courts, the case came before the justices, who did their best to reconstruct the crime scene. They even had a Columbo in the room -- actually, Harry Colombo, arguing for the prosecution. In dispute: whether a "blood pool" found in the doorway belonged to Klein, which would mean the murder victim had been moved after he was shot.

Clifford Gardner, lawyer for the accused, maintained that "there were drops leading away from the blood pool." The defense claims that a third person, drug dealer "Gunner" Johnson, did the shooting and moved Klein to the couch.

Roberts was skeptical. "You are not suggesting he could have lifted Klein and walked him over, are you?"

"Yes," the lawyer told the chief justice, "I think he could have lifted him, Your Honor."

"How much did Klein weigh?" Roberts demanded.

"I think he weighed between 150 and 160 pounds," Gardner guessed.

Alito had a suggestion for the accused. "He could have made up a story that Klein jumped up and he was shot without having engaged in any firing himself," the justice said.

Sotomayor, who revealed during her confirmation hearings that she was a Perry Mason fan, told the lawyer that there was "nothing to refute the critical testimony at issue: that Klein was shot where he was shot because there's a high-velocity blood 'splatter' in front of him and because the pooling on his face shows that."

This set off a long and sickening discussion of "high-velocity blood spatter" and "satellite drops" of blood and "fan-like pattern of atomized blood."

Mercifully, Ginsburg changed the subject to something less gruesome -- but the reprieve was temporary.

"The bullet lodged in the victim's head," Colombo told the justices, so "the spatter would have been ...back spatter, meaning the blood would have flown out from the victim's head outward."

Almost makes one long for a campaign-finance case.


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