I generally enjoy Dahlia Lithwick's rundown of legal issues in Slate, and I think I've discovered another reason to like her -- her recent take on the decision in the John Muhammad trial is a nice example of how close analysis of a situation can suddenly cross over into prognostication of likely future events and then make the short, thrilling leap into pure imagination -- something I do that drives Theresa nuts. Noting that the jury in the case apparently looked beyond the problem of whether or not Muhammad's alleged masterminding of the sniper killings could be proved, and simply took it on faith that he was the "puppet master" of John Lee Malvo, she notes that the prosecution theory in the Muhammad case "maps perfectly" onto Malvo's defense (in his seperate trial) that he was a brainwashing victim.

She raises the question "can and should the guilty verdict in Muhammad's trial exonerate Malvo? Doesn't the Muhammad verdict definitively mean that, yes, Malvo was manipulated and used?" She quickly points out that legally, this logical progression is meaningless -- the Muhammad verdict will not be evidence in the Malvo case, and indeed, Malvo's insanity defense is a difficult one.

But she goes on in the timeless manner of deep thinkers everywhere:

Still, the question remains, as a moral, if not legal matter, whether we can justify taking two lives based on two irreconcilable theories of the case. Can Muhammad die for manipulating Malvo, while Malvo dies for being a free agent?

More likely what will happen is that both juries will achieve a single and somewhat just end by accepting both versions of the truth, and neither. Ultimately this will result in a sort of loose legal equilibrium—with the jurors partially nullifying in each case—fudging the law on the margins to hold the elder sniper more responsible, which makes intuitive, if not legal, sense.

She builds her conclusion on a more heightened version of the same theme:

Depending on what happens in the Malvo trial, and at both sentencing hearings, at the end of these two trials we may witness a result that is not precisely legal but nevertheless probably fair: Muhammad will be executed for murders he never quite committed, and Malvo's life may be spared for murders he blatantly committed, because of an intuitive emotional consensus that he was not fully culpable as an adult. It is a cliché that the law is a blunt instrument. What we forget is that juries are quite subtle.

That "depending on what happens" is a very useful qualifier -- I really should employ it more often around the house -- but it doesn't erase the sense that her almost stern brace of sentences at the end, which remind us that those good folks on juries have more on the ball than a Court TV studio-full of well-coiffed commentators, are hanging out there in advance of that jury being so all-fired subtle in the first place. Especially when she's just finished telling us how the Muhammad jury blandly accepted a prosecutorial theory on the basis of very little evidence, this claim rings a little bizarre.

It's one thing to lay out your case for what will happen in the courtroom or at the ballot box. But it's another to go from there to deducing the lesson-for-us-all in the thing which has yet to happen.

Therefore, I predict that, just by taking note of this instance, my own tendency to assuredly predict both what will happen and what it will mean will be appropriately curtailed. It is a cliché that you can't teach an old dog new tricks. What we forget is that...um...let's see...I am a wombat?