I thought it might be fun to play a little game. The longish quote you’ll find below is excerpted from the case of Gordon v. Commonwealth, 183 S.E.2d 735, 212 Va. 298 (1971), a published opinion from the Supreme Court of Virginia. I’ve given you all of the facts considered by the Court. After a bit of white space, I’ll tell you how the Court decided the case, its rationale, and how all of this applies to the LSAT. As you read the fact pattern, put yourself in the position of the justices. Don’t question the facts. Merely accept them as given, and use your logical prowess to assess the evidence. Would you affirm the conviction, or reverse it?
“On December 15, 1969, at approximately 2:15 p.m., Detective Harding was driving east on Leigh Street approaching Third Street in the City of Richmond when he observed Gordon walking east on the north side of Leigh Street. As Harding drew even with him, Gordon stepped between two bushes ‘and a concrete type fence and pulled out a brownish color, manila color envelope.’ When he stepped back, Gordon saw the detective, raised his hand, said ‘Hi, Harding’ and began to walk west on Leigh Street with the envelope in his hand.
As Detective Harding made a U-turn in the intersection of Third and Leigh Streets, Gordon looked back at him and began running. He ran across the intersection of Second and Leigh Streets and south on Second, followed by Harding driving the wrong way down the one-way street. Harding stopped his car part way through the block and continued the pursuit on foot as Gordon darted to the east through an alleyway and then turned south again.
Harding was approximately 15 yards behind Gordon but narrowed the distance to five to seven yards when Gordon’s flight was slowed by a closed gate at the rear of doctors’ offices at Number 206 East Clay Street. When Gordon used both hands to open the gate Harding saw that he was still carrying the envelope. For three or four seconds thereafter Harding lost sight of Gordon as they ran along a passageway between the doctors’ offices and around a brick wall standing in the center of the passageway at the front of the offices.
Emerging from the entrance, Harding saw Gordon running east along Clay Street but no longer saw the envelope. The detective followed Gordon across the intersection of Clay and Third Streets, and north on Third. He again momentarily lost sight of Gordon when the latter disappeared around the corner of a building but soon found him hiding behind a doghouse. Harding arrested Gordon, and, after searching the surrounding area unsuccessfully for the envelope, took him back to the police car on Second Street.
Harding introduced into evidence and testified from photographs which he had taken showing Gordon’s route from the sidewalk on Leigh Street where he first saw Gordon to the doghouse where the pursuit ended. Harding testified that during the chase he had called to Gordon to halt and had fired a warning shot into the air but that Gordon continued to flee. He conceded that he did not see Gordon dispose of the envelope.
Detective Vann testified that he had been walking east in the two hundred block of East Clay Street when he received information that the police were chasing someone in the block. After delivering a message in a nearby building Vann returned to the street and, pursuant to information reported to him, observed an envelope lying on the grass behind the perforated wall extending in front of the doctors’ offices east of the entrance to Number 206 East Clay Street. He acknowledged that Clay Street was a ‘fairly busy’ street and that he did not know how the envelope happened to be where he found it. Vann testified that after a lady unlocked a gate, he entered the enclosure behind the wall, picked up the envelope and shortly thereafter delivered it to Detective Harding.
Harding testified that this envelope, ‘a pay envelope with Central National Bank on the front of it’, was the ‘same color, size and shape’ as the envelope which he had seen Gordon pick up on Leigh Street.
The envelope delivered to Harding was found to contain ‘narcotics works’, consisting of a syringe, a needle, a bottle cap known as a ‘cooker’, and a stocking. The bottle cap, upon analysis, responded positively to the qualitative test for heroin. The envelope and its contents were introduced in evidence by the Commonwealth.”
[scroll down for the Court’s decision]
Without dissent, the Court reversed Gordon’s conviction. In this case, the trial court had based its decision on circumstantial evidence. The Court tells us that “[w]hile a conviction may properly be based upon circumstantial evidence, suspicion or even probability of guilt is not sufficient. There must be an unbroken chain of circumstances proving the guilt of the accused to the exclusion of any other rational hypothesis and to a moral certainty.” (emphasis added)
Here, the chain of circumstantial evidence was broken, because “no witness was produced who saw Gordon dispose of the manila envelope which he carried. The envelope containing narcotics ‘works’ was found by Detective Vann on a grass plot separated only by a perforated wall from the public street on which numerous persons were gathered.”
Hopefully, you found this to be a fun application of your critical reading and reasoning skills. Let’s put the Court’s analysis in the context of the LSAT. First, the Court was presented with a set of facts, much like the stimulus in a Must Be True question. The Court was not permitted to look behind the facts, but simply to determine whether the prosecution’s theory has been proven beyond a reasonable doubt. While not precisely the same, this standard is similar to the standard we apply to Must Be True questions.
In its analysis, the Court essentially says that the prosecution made an assumption, thinking that since Gordon had a manila envelope in his hand when he ran past the yard in which the drugs were found in a manila envelope, the drugs in that envelope must have belonged to Gordon. I’ve got to admit, the prosecution’s theory makes a lot of sense. If I were the prosecutor, I probably would have brought the charge against Gordon too, hoping that the jury and the appellate courts would see it my way.
But probably just doesn’t cut it. Think of all the holes in the prosecution’s theory. We don’t know whether Gordon’s manila envelope was a “pay envelope with Central National Bank on the front of it,” like the one found by the detective. We don’t know precisely how long it was between the time Gordon ran past, and the envelope was found. We don’t know whether some other person on that busy street saw all of the police activity and figured they’d better ditch their drugs over the brick wall, hoping to come back and retrieve them later.
These unanswered questions represent broken or missing links in the chain of inference that must remain unbroken to justify a criminal conviction based on circumstantial evidence. Hold the evidence you’re given on the LSAT to the same exacting standard. Don’t give the facts the benefit of the doubt. When you’re taking the LSAT, you are the trier of fact, weighing the evidence. Keep the evidentiary standards in your courtroom high.
Photo: “3D Judges Gavel” courtesy of Chris Potter.