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4.2.12 WC: 191694 One of the most intriguing cases during my year with Judge Bazelon began as an ordinary pick pocketing of a wallet containing $14. Based on the sparse evidence, “the jury could have inferred either that the wallet was picked from [the alleged victim’s] pocket, or that it was accidentally dropped from his pocket and was picked up by someone who ran off with it.”’® The judge instructed the jury that there is a legal presumption that a defendant’s “flight may be considered by jurors as evidence of guilt.” There was no dispute that the defendant did flee when confronted by the alleged victim shouting , “Hey, that’s my wallet. Give it back to me.” But of course the defendant might well flee even if he simply picked up a dropped wallet and didn’t want to return it. Such an action would be immoral and perhaps even minimally criminal—the misdemeanor of failing to return a found wallet, for which he had not been charged. But the defendant here was charged with the felony of robbery. The jury convicted him of robbery and the judge sentenced him to prison for two to six years. When the case came across my desk, I saw it as an opportunity to use my law school background in psychiatry and law—I was working on a casebook with two of my law school professors on “Psychoanalysis, Psychiatry and the Law”—to reverse what appeared to be a possibly unjust conviction. The great legal commentator Wigmore had written the following about evidence of guilty feelings: “The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; the guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to “guilty” is always available in evidence. It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person’s consciousness is caused by a delusion, and not by the action doing of the act.’”” This view had become the accepted wisdom by lawyers, judges and professors and was the basis for the judge’s instructions to the jury in the pick pocketing case. I found it highly questionable, especially in the context of the facts of the case. In an effort to support my conclusion that the defendant’s flight in this case was equally consistent with the legally innocent explanation that he was fleeing to avoid returning a dropped wallet, or the guilty explanation that he was fleeing from a pick pocketing crime, I introduced a quote from Sigmund Freud: “You may be lead astray...by a neurotic who reacts as though he were guilty even though he is innocent—because a lurking sense of guilt already in him assimilates the accusation made against him on this particular occasion. You must not regard this possibility as an idle one; you have only to think of the nursery where you can often observe it. It sometimes happens that a child who has been accused of a misdeed denied the accusation, but at the same time weeps like a sinner who has been caught. You might think that the child lies, even while it asserts its innocence; but this need not be so. The child is really '© Miller v. US (June 14, 1963) Centuries early, the Jewish scholar Maimonides had provided a more nuanced psychological insight. [quote] 58 HOUSE_OVERSIGHT_017145