Mimesis Law
19 November 2019

Judge Kozinski And The Mystery of F.W. Murnau’s Head

July 20, 2015 (Mimesis Law) — Sometimes, three things that have nothing to do with one another can have a lot in common, if you squint and tilt your head a bit.

1. It wasn’t an epiphany that led Alex Kozinski, Judge on the United States Court of Appeals for the Ninth Circuit, to begin his Preface to this year’s Annual Review of Criminal Procedure in the Georgetown Law Journal with the observation that, although we pretend otherwise, much of what we do in the law is guesswork.

He was just saying what we all know, what we’ve all known for years – all of us who toil in the courtroom. We tell ourselves otherwise, of course. We teach the wonders of the system. We advertise its fairness and integrity. And we know it’s a lie.

2.  F.W. Murnau’s head has gone missing. Murnau, the director of the silent film horror classic Nosferatu, an unauthorized adaptation of Bram Stoker’s Dracula, died in 1931 in California. He’s buried (well, most of him still is and all of him was) in Germany. Earlier this month, his grave was broken into and his skull stolen. They just found out last week.

It’s said that they found wax nearby. To some people, it suggests that the grave robbing involved candles and a Satanic ritual. Which is, of course, possible. Or there may have been candles because it was nighttime. Or there may not have been candles at all.

If Murnau’s head is missing, it’s possible that the whole body of William Butler Yeats is lost. Yeats, the great Irish poet, died in France in 1939. His last wish, it seems, was to be brought back to Ireland and buried in Drumcliffe Churchyard in County Sligo. It took some time, what with World War II and all, but in 1948, Yeats went home.


There’s always been some ambiguity about it – at least a few rumors of a mix up. Still, the grave is honored. Just last month Prince Charles and the Duchess of Cornwall stopped by the graveside to pay respects. But it seems that just last month, correspondence among diplomats involved in the repatriation were given to officials at the Irish embassy in Paris and indicate that, well, they don’t really know whose bones were sent to County Sligo, what with World War II and all.

3.  Justice Mark Dwyer of New York Supreme Court in Brooklyn (which is the trial court in New York) decided that New York prosecutors could not introduce “high sensitivity DNA analysis or use their proprietary Forensic Statistical Tool in the unrelated prosecutions of Jaquan Collins and Andrew Peaks. Those analytical methods, he said, don’t pass the smell Frye test.

Frye is the old test, abandoned by the feds and most (or at least many) states in favor of Daubert for determining whether to admit what passes for expert evidence into evidence in court proceedings. Oversimplifying nearly to the point of being misleading, Frye requires a judge to determine whether the evidence is generally accepted in the relevant community while Daubert asks whether the evidence is reliable.

Justice Dwyer took evidence and considered the matter over two years and decided that while high sensitivity DNA analysis and the Forensic Statistical Tool might someday be generally accepted by DNA types, it hasn’t happened yet.

This is no small thing. Government experts are, essentially, never prohibited from telling juries about whatever hocus pocus they dream up. Defense experts not so much. And no, our whores are no more creatively dishonest than theirs.

Like Kozinski, Dwyer began by acknowledging what everyone who’s paid even a bit of attention already knew.

This court recognizes that judges are, far and away, not the people best qualified to explain science.

But forced to do it anyway, he did something that almost never happened with expert evidence: he did it properly. That’s worthy of some note. Frye is readily abused. Fingerprints, for instance, pass the Frye test and are admitted in court because the relevant community of experts, fingerprint examiners, pretty much conclusively believes they’re meaningful. (They ought to flunk a fair Daubert challenge since they have no demonstrated reliability, but they’re fingerprints f’rgodssake, so they’re universally admitted because everybody knows fingerprints.)

Anyway, here’s the thing. Nothing is as it seems. You never know. They’re all lying.

Or maybe not.

The FBI recently announced that it’s hair comparisons were “overstated” (government speak for “we lied”) in hundreds of trials including those that sent some folks to death row and on to execution. And the thing is, we all knew hair comparison was bullshit.

So who’s in Yeats’s grave? Maybe it’s William Butler Yeats. Maybe not. Maybe it’s part him and part someone else. Hell, maybe they stuck F.W. Murnau’s head in there.

The working assumption is that the system gets it right the vast majority of the time. Alex Kozinski acknowledges that nobody knows, nobody really has any idea, whether that’s true.

And while there are things we can do to maybe up the odds that innocent folks won’t be convicted at trials, maybe even won’t be charged, we can’t really stop it.

Which ought to be a sobering thought while you contemplate the missing head of the first great master of the horror film.

8 Comments on this post.

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  • Richard G. Kopf
    22 July 2015 at 2:17 pm - Reply


    Great writing to make an important point.

    I don’t like Daubert or Frye. All we are really talking about is foundation. If you can lay it, fine, let the evidence in and let the jury determine whether it is bullshit. That, of course, assumes that opposing counsel knows the difference between his head and his ass.

    All the best.


    • shg
      22 July 2015 at 3:08 pm - Reply

      Appreciate the thought, Judge, but this is Gamso’s handiwork, which explains why it’s great writing.

      • Richard G. Kopf
        23 July 2015 at 12:45 pm - Reply


        Appologies to Jeff. After all, he has as Masters degree or some other liberal arts diploma in all things English. With apologies to Jeff, and best to all,


        • shg
          23 July 2015 at 1:25 pm - Reply

          If I remember correctly, his master’s thesis was “Errors in ee cummings Writings.” He got a C+.

          • Jeff Gamso
            23 July 2015 at 2:16 pm -

            As an undergraduate I wrote a paper for a Shakespeare class (this is true) called, “Othello As a Comedy or Ha! Ha! Desdemona’s Dead.”

          • shg
            23 July 2015 at 3:33 pm -

            This clearly explains why you ended up a lawyer.

  • Just Say No, Forensics Edition | Simple Justice
    23 July 2015 at 9:32 am - Reply

    […] Gamso, in his inimitable way of tying loose ends together, went from 9th Circuit Judge Alex Kozinksi to F.W. Murnau’s […]

  • An Attempt to Explain High Sensitivity Analysis in Collins – Windypundit
    28 July 2015 at 9:40 pm - Reply

    […] Jeff Gamso and Scott Greenfield have written about Brooklyn Supreme Court Justice Mark Dwyer’s opinion in […]