Reflections

See Reflections on the 1970s

Relative (Lawyerly) Misery

Robert Miller notes that a story in American Lawyer recites that Manhattan lawyers earning $1,000,000/year and more are unhappy because financial professionals make more. Miller concludes, "Indeed, there is no misery so small that it cannot fill the human heart."

With that in mind, I will go back to my books and my writing.

"And a Merry Christmas to you!" said Scrooge (eventually). Or something of the sort.

The conference Enquiry, Evidence & Facts was a smashing success.

Whether my talk was a smashing success is a different question.

I know of no programme or community in the world that is quite like the Enquiry, Evidence & Facts programme and community in London. May it (or they) long live!

A Puzzle

The narrator -- in the Chevron ad on PBS TV --, the narrator (sonorously) intones, "Where are the answers?"

I think, "Where are the questions?"

Then I think, "In the very act of asking for answers, the narrator asks a question."

So, dear Reader, do I have any reason to complain?

Is the narrator's answer a question? Is it both a question and an answer? Is it both a question and a question?

Or does the narrator's answer (question?) generate a question?

And why am I wasting my time with such questions?

The Most Incomprehensible Thing

An article in the NYTimes reminds us that Albert Einstein reportedly said:

The most incomprehensible thing about the universe is that it is comprehensible.

There is a similar mystery -- or, there is a species of this mystery -- about the ability of evidence to reach beyond itself, to suggest possibilities that are not, strictly speaking, shown or demonstrated by evidence but that nevertheless sometimes turn out to be (probably) true. (E.g., I see what looks like a footprint -- and I infer that someone walked there; I see what may or may not be a handprint, I infer that it is a handprint, and I infer, or guess, that David Defendant's palm put it there.)

Clergy Abuse Scandal, Catholic Clergy, Protestant Clergy, Celibacy & Anti-Catholic Prejudice

The "clergy sex abuse scandal" was breaking in the United States when I was a visiting professor at Harvard Law School in the spring semester of 2002. And the Boston Globe was leading the charge: reports and revelations of abuse were appearing daily or almost daily in that paper's pages.

After a month of two of reading such reports and revelations, I noticed -- it was hard not to notice -- that all of the revelations were about alleged abuse by members of the Roman Catholic clergy; in the eyes of the Boston Globe reporters "clergy abuse scandal" seemed to be a synonym for the "Catholic clergy sex abuse scandal."

I sent two e-mail messages to the Boston Globe that spring to ask why its investigative team wasn't looking into sex abuse by Protestant clergy.

The Boston Globe responded. Its response was not that it already had too much on its hands and that it didn't have the time or resources to broaden its investigation or to launch a new investigation. The Boston Globe's response was that the consensus is that sex abuse by Protestant clergy is not a serious problem.

Over the years the Boston Globe has worked hard to defend the proposition that homosexuality among the Catholic clergy was not the cause of the "[Catholic] clergy abuse scandal." But the Boston Globe has not hesitated to say or intimate that the Catholic Church's clergy celibacy policy [which it opposes] was a major cause of the "[Catholic] clergy abuse scandal." See, e.g., James Carroll, "The Basilica of Denial," Boston Globe (December 5, 2005) ("Last week's Vatican 'instruction' restricting admission to the priesthood to heterosexuals was an exploitation of prejudice about homosexuality aimed at drawing attention away from the real crisis facing the Catholic Church. If any one group "caused" the priest sex-abuse scandal, it was not gays, but rather the bishops themselves, who now scapegoat gays. ... What the scandal reveals is the moral bankruptcy of the entire Catholic clerical culture, but in order to deal with that, basic questions about celibacy, women's ordination, the role of the laity, and repressive authority would have to be asked.")

In 2005 the Irish Echo Online reported that the Boston priest "[Paul] Shanley, who is 73, received favorable press coverage from the Boston Globe and other publications during the late 1970s, when he served as a celebrated street priest working with alienated youth." In 1980 a New York Times columnist scolded the Boston Archdiocese for putting limits on the pastoral work of Paul Shanley, who was known for directing his pastoral work at homosexuals. See Columnist in NYTimes Criticizes Roman Catholic Hierarchy for Reining in Paul R. Shanley. It was this same Shanley who later became one of the principal figures in the "clergy abuse scandal" in the Boston area.

It is possible that clergy celibacy is a cause of sexual misbehavior by Catholic clergy. But, thanks to Martin Luther, Lutheran churches do not have a "policy" of celibacy for clergy. And it seems that the Evangelical Lutheran Church in America may now be experiencing its own "clergy abuse scandal." The first major sign of such an impending disaster for Lutheran churches was the $60,000,000+ (yes, more than sixty million) settlement in 2004 of legal claims against a Lutheran minister, against a Lutheran seminary, against the Evangelical Lutheran Church in America [ELCA], and against various Lutheran officials. The gravamen of the charge was that a Lutheran pastor molested male children and that various Lutheran officials and organizations allowed a known sexual predator to become a pastor who was in a position to molest children. See Christianity Today:

In what may be the largest per capita clergy abuse settlement ever, nine victims will receive $36.8 million from the Evangelical Lutheran Church of America's Northern Texas/Northern Louisiana Synod and two former officials. The civil case follows the conviction of Gerald P. Thomas, former pastor of Good Shepherd Lutheran Church in Marshall, Texas, for sex crimes against children. An additional $32 million out-of-court settlement was reached before the trial ended. Total awards amounted to nearly $69 million awarded to 14 victims.

Individual awards ranged from $50,000 to $9.8 million depending on medical needs and the amount of abuse suffered. The settlements involve Trinity Lutheran Seminary in Ohio, a Michigan candidacy committee that ordained Thomas, Good Shepherd Church, the Northern Texas/Northern Louisiana Synod, and Bishop Mark Herbener of the Northern Texas-Northern Louisiana Synod and his assistant Earl Eliason. According to the ELCA, the 5 million-member denomination will pay $8 million of the total settlement.

See also Bob Ross, Jr., "Judge OKs settlement in Lutheran Church abuse case," Chicago Sun-Times (April 13, 2004) ("The case of former Lutheran pastor Gerald Patrick Thomas Jr., who was sentenced last year to 397 years in state prison for sexually assaulting boys in this East Texas town, has drawn parallels from victims' advocates to some of the worst cases in the Roman Catholic abuse crisis.")

It now appears that a second big shoe may be about to fall: twenty (20) men in New Jersey have brought a lawsuit against a Lutheran parish, against the Evangelical Lutheran Church in America [ELCA], and against the New Jersey Synod of the ELCA. These men seek approximately $100,000,000 in damages. They aver that a male Lutheran minister molested them when they were children.

See Kathleen Hopkins, "Sex-abuse lawsuit against Brick Twp. church to proceed," Ocean County Observer (August 19, 2007):

A $100 million lawsuit against St. Thomas Lutheran Church in Brick will proceed after a judge on Friday declined to dismiss complaints brought by 19 men who allege they were molested as children in the 1960s, 1970s and 1980s by the church's onetime pastor.

&&&

Toms River attorney Robert R. Fuggi filed the lawsuit on behalf of 19 plaintiffs, who now range in age from 29 to 52, who allege they were molested by [the parish pastor] Slegel when they were children ranging in age from 5 to 15. There is a 20th man who also claims he was molested as a child by Slegel, whom Fuggi said he plans to add as a plaintiff to the lawsuit. &&&

"Today was a significant victory," Phillipsburg attorney Gregory Gianforcaro, another attorney representing the plaintiffs, said afterward of O'Brien's decision. "It means that the case can proceed on for pretrial hearings."

For a 40-year-old Brick man who is one of the 19 plaintiffs, the decision means he can continue with his quest to protect his own and other children from similar sexual abuse. "I'm a parent, and I have two small children, and I don't want anyone to go through what I went through," said the man, whose identity has been withheld because he was the victim of alleged sexual assaults. "I don't want anyone to go through the hell that I and the other 19 did."

The man, who attended Friday's hearing with 12 of the other plaintiffs, said outside the courthouse that he was 6 years old and would play ball in the street every day with his friends when Slegel opened the doors to the church's facilities to them, telling them they could have a place to play, rain or shine.

Soon after that, Slegel would take him into his office, make him sit on his lap and molest him while the boy played with the pastor's typewriter, the man alleged. The molestation occurred weekly for seven years, until he was 13 years old, the man claimed.

Asked the number of times it occurred, the man responded, "I can't count that high." By the time he was a teenager, "I turned to alcohol, marijuana and cocaine — anything to bury it," the man said. "I was guilty of living a block away (from the church). I was just trying to be a kid."

Also outside the courthouse, the mother of one of the plaintiffs, who did not identify herself to protect the identity of her son, said, "We thought it was awesome that the church was opening its doors to the kids, and we were totally trusting. We never heard anything (about sexual abuse by clergy) back then."

Attorneys for the church on Friday argued that the church, school and its officials have immunity from the claims in the lawsuit because of their status as charitable organizations. The attorneys for the defendants also argued that the two-year statute of limitations had long passed before the lawsuit was filed in 2005.

"The alleged acts of sexual abuse took place between 1967 and 1985," William J. Conroy, attorney for the church and school, told O'Brien.

"My client is deceased, which means this case is a very difficult case to defend for all of the defendants," said Linda A. Olsen, the attorney representing the estate of Slegel, who was living in Southern Shores, N.C. when he died last year at age 77.

Normally, the statute of limitations would have started to run when the plaintiffs turned 18. But Fuggi said because of his clients' repressed or delayed memories of the alleged abuse, the statute of limitations would not start to run until they realized the molestation caused emotional problems they are experiencing as adults.

O'Brien ordered that the plaintiffs be examined by medical and mental-health experts for the defense to determine when they remembered the alleged abuse and realized what effect it had on them. The judge ordered future hearings to be held on that matter and on the relationship of each plaintiff with the church and school to determine whether their claims can proceed to trial or are barred by either charitable immunity or the statute of limitations.

O'Brien, in making his ruling, cited a 2006 decision by the state Supreme Court in a case involving alleged child sexual assault — John W. Hardwicke against the American Boychoir School. The Hardwicke decision said charitable organizations are not immune from claims brought for willful, wanton or grossly negligent conduct, and that an institution such as a school can be viewed as a child abuser if it is standing in place of a child's parents and fails to protect the youngster from abuse.

The judge said he would meet with the attorneys in the case in November of 2008 to schedule the pretrial hearings, after the plaintiffs are examined by medical and mental-health experts. O'Brien dismissed complaints brought by two of the plaintiffs against the Rev. John M. Elstad, an associate pastor who worked under Slegel and assumed the post of senior pastor upon Slegel's resignation amid scandal in 1993. O'Brien dismissed the two complaints because the allegations of abuse preceded Elstad's arrival to the church, but he let stand the complaints of the remaining plaintiffs against Elstad.

The lawsuit has alleged that Elstad, who retired in 2004, and other church and school officials turned a blind eye to the sexual molestation.

Elstad's attorney, Michael Gilberti, has denied that Elstad had any knowledge of the alleged abuse. Joseph Goldberg, an attorney representing officials of the Evangelical Lutheran Church in America and 192 Lutheran churches known as the New Jersey Synod, said the church officials named as defendants were not yet in office when the alleged molestation occurred.

Does the story sound familiar?

Does the Pultzer Prize-winning Boston Globe want to reconsider its position about the scope and possible causes of the "clergy abuse scandal"? If not, is the Boston Globe guilty of anti-Catholic prejudice?

N.B. I have been a Lutheran all my life. I am now reconsidering my religious affiliation. I live in New Jersey. To my knowledge, there has been little if any discussion in by the ELCA hierarchy about the possible problem of Lutheran clergy abuse. The position of the ELCA seems to be like the Boston Globe's: "What problem?" I suspect that time will tell a different story.

Two More Advance Copies of Papers on Visualization of Evidence and Inference

The following advance copies of papers on the visualization of evidence and inference are now available:

1 December 2007

Chris Reed and Glenn Rowe, A pluralist approach to argument diagramming, Law, Probability and Risk Advance Access published on December 1, 2007. doi:10.1093/lpr/mgm030

26 November 2007

Terence J. Anderson, Visualization tools and argument schemes: a question of standpoint, Law, Probability and Risk Advance Access published on November 26, 2007. doi:10.1093/lpr/mgm039

These advance copies will disappear in a week or two; the hard copy of LPR's quadruple(!) special issue on visualization of evidence & inference will be published in hard copy very soon.

When Guilt or Innocence Hangs (Largely) on a (Microscopic) Speck

Some years ago - in 1999 -- Jill Dando, a well-known BBC TV reporter (or "presenter"), was shot to death. In 2001 a man called Barry George was tried and convicted for her murder. A key piece of evidence -- apparently the key piece of evidence -- against George was a "microscopic particle of gun shot residue found in the pocket of a jacket owned by George." Wikipedia Article. But the UK Court of Appeal has just concluded that George's conviction was "unsafe" and it allowed George's appeal (i.e., it vacated his conviction). (But George was not released from custody.)

An article in the Guardian in the summer of 2002 asserted, "The evidence against George - resting primarily on an invisible particle of explosives residue found on the lining of his coat - was remarkably thin. He lived in a cluttered and uncleaned flat." Bob Woffenden, Shadow of Doubt?, Guardian (July 6, 2002)

I have not studied this well-known case, and I have not read the Nov. 15 opinion of the Court of Appeal. But one media account implies that it is possible the Court of Appeal allowed George's appeal (on Nov. 15, 2007) because the Court concluded that there was a real possibility that the police who searched George's apartment inadvertently deposited the microscopic particle on George's clothing. Other sources hint at a slightly different but similar ground for the overturning of George's conviction -- that the argument tying the speck or particle to the gun that was used to shoot Jill Dando was weak and perhaps that the Court of Appeal concluded that it was equally probable that the speck found in the pocket of George's jacket came from a different source, from a source other than the murder weapon. See, e.g., the Wikipedia article cited above. Cf. a BBC news report discussing the argument before the Court of Appeal prior to the ruling by the Court of Appeal:

Dr Ian Evett, an FSS employee since 1966, said his position was one of "vague unease", Mr Clegg [defense counsel] said.

He [Evett?] said an FSS report found "it would be just as likely that a single particle of discharge residue would have been recovered from his pocket whether or not he was the person who shot Miss Dando nearly a year previously".

Needless to say, I need to read the Nov. 15 opinion of the Court of Appeal.

One odd thing about this case is that a well-known "crime science" institute was established in Jill Dando's memory. See UCL Jill Dando Institute of Crime Science

Scientific evidence can be powerful. But sometimes scientific evidence makes a great deal out of physically trifling trifles of evidence. Is the object lesson of the George case this: when scientific inferences rest on physically small trifles (a hair, a speck of dust, etc.) very careful attention must be paid to how the evidentiary trifle might have gotten to where it was found? [For example, was the trifle wafted there by the wind? Was it deposited there by a police officer? Did the cleaning lady {or gentleman} leave it there? Etc.] Or does this case merely teach that the science used to draw inferences from the trifle in question went awry (perhaps due to mistakes by the testifying expert or, alternatively, perhaps because of defective scientific theory)? I shall have to read the opinion. Or, dear Reader, perhaps you will do this for me?

Brain Complexity: An Update

A smart$#%, or a modern-day imaginary academic Walter Mitty(?), suggests how recent research into electromagnetic fields in the brain might show that brain operations might are far more complex than previously imagined:

I couldn't take it anymore. I raised my hand.

"Yes?" Karmel [an imaginary lecturer] boomed.

I cleared my throat. "I have a question about neurons."

"What is it?" He seemed slightly irritated by having to deviate from the portrait of the hypothalamus that he was so masterfully painting.

"Is the action potential, the electrical charge that travels down the axon of a neuron, in any way similar to electric current that passes through wires in a circuit?"

"The action potential is an electrochemical impulse, whereas the current in wires is purely electrical - though there are some similarities."

"Well, I guess what I was wondering about is this - we know when current passes through a wire it creates an electromagnetic field around that wire. Is it true, then, that when a neuron fires, an electromagnetic field appears around the axon?"

"Yes, in fact some research has actually measured the strength of these magnetic fields." He seemed pleased with his answer.

I twirled my pen between my fingers. "That's interesting, because the magnetic field around a wire alters or creates current in a wire lying near it. Does that mean that any single neuron can influence the action potential of other nearby neurons not just through the synapse, but also through the changes in its magnetic field - and doesn't that add a level of complexity to how the brain functions that far surpasses our current knowledge, especially since our theories primarily emphasize synaptic transmission?"

Karmel's pipe dropped from a stout, upright angle to a limp, downward slant. He pulled it out of his mouth and leaned across his desk towards me, squinting slightly, as if trying to bring me into sharper focus. "I suppose the magnetic fields around axons might influence the activity of other axons, but the communication of information in the brain is primarily through the synapses.... Now, as I was saying, the hypothalamic nuclei are intricately interconnected and receive information from motor systems and from olfactory, gustatory, visual, and somatosensory systems..."

&&&

If quantum computing is what the brain does, the complexity of the brain's opreations is almost boundless. See, e.g., the brief discussion here; the author -- Stuart Hameroff, M.D. -- there states (in part):

Beginning in the early 1980's Benioff, Feynman and others proposed that states in a system - bits in a computer - could interact while in quantum superposition of all possible states, effecting near-infinite parallel computation. Rather than classical Boolean bit states 1 or 0, quantum computers would utilize interactive "qubits" of 1 and 0. If quantum computers can ever be constructed they will have huge advantages in important applications. As the brain/mind has always been cast as current information technology, consciousness may inevitably be seen as some form of quantum computation.

Are Sensations Irreducible or Are They Complex?

Marvin Minsky, Interior Grounding, Reflection, and Self-Consciousness (originally published in Brain, Mind and Society, Proceedings of an International Conference on Brain, Mind and Society, Graduate School of Information Sciences, Brain, Mind and Society, Tohoku University, Japan, September 2005):

[S]ome people ... think that the qualities of such sensations [such as the sensation of a color such as "red"] are so basic and irreducible that they will always remain inexplicable.

However, I prefer to take the opposite view—that what we call sensations are complex reflective activities. They sometimes involve extensive cascades in which some parts of the brain are affected by signals whose origins we cannot detect—and therefore, we find them hard to explain. So, I see no exceptional mystery here: we simply don’t yet know enough about what is actually happening in our brains. But when you think enough about anything, then you see this is also the case with everything.

Minsky is one smart cookie.

Two More Advance Copies of Papers on Visualization of Evidence and Inference

Please go here for advance copies of the following two papers on graphic and visual representations of evidence and inference in legal settings (but the gratis links to these papers will expire in a few weeks, when the hard copy of the special issue[s] on visualization appears):

David Tait, Rethinking the role of the image in justice: visual evidence and science in the trial process, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm040

Burkhard Schafer, Can you have too much of a good thing? A comment on Bart Verheij's legal argumentation support software, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm038

A Comment Pertinent to Visualization of Evidence and Inference

Consider these propositions:

Ideas and diagrams are higher abstractions than words and fonts. The Idea Processor depicts ideas as graphical objects and its relationship as links. You get the Big Picture at all times, and details can be hidden from view. A diagram helps to organize cognitive activities and select approaches to problem solving. A diagram need not be a precise representation of all aspects of the real world. Vagueness helps to distill the generic attributes of the ideas and encourages exploration. A sketch is often not so much vague as it is something that stands for a family of precise models.

Axon Concepts

Note the comment about the possible occasional value of vagueness in diagrams.

Unconscious - and Remarkably Complex! - Inference

Although described as a master computer, the brain is fundamentally more complex and its processes far more subtle than those of any current computer design. With the advantage of parallel operation of neuronal populations, the brain manages and controls a wide variety of tasks simultaneously, reliably, and with rapid precision. Indeed, much of the brain's work proceeds even in the absence of an individual's conscious awareness.

All brain activity results from electrical and chemical communication among neurons (the primary signaling cells of the brain), each of which can communicate with other neurons using signals at rates of up to 1,000 events (impulses) per second. To understand the brain, neuroscientists must measure and analyze the rapid changes in neuronal signaling activity that occur over the vast networks of cells and connections. The scope of this endeavor is immense. It is estimated that the human brain contains more than 100 billion neurons, and each neuron maintains an average of about 1,000 connections, called synapses, with other neurons. Some neurons have as many as 200,000 synapses. During each moment of daily life, neural signals may be transmitted across any of approximately 100 trillion synapses.

Constance M. Pechura and Joseph B. Martin, eds., Mapping the Brain and Its Functions (National Academies Press, 1991)

Perception as Unconscious Inference; Shades and Forms of the Same

Perception involves unconscious inference. But unconscious inference in perception takes various forms. Gary Hatfield has apparently spent much of his professional career studying the nature of perceptual inference. See here. Shouldn't people in the law of evidence -- people who profess to care about perception and about reports based on perception -- pay attention to Hatfield's work?

Much of Hatfield's work focuses on vision.

Do You Believe in Sociobiology and Law? - Chapter 5

29 London Review of Books No. 22 (15 Nov. 2007) has further responses to Jerry Fodor's jab at ultra-Darwinism. The attempted rebuttals are of diverse kinds. See Letters at id. The rebutters (people) include Jerry Coyne, Philip Kitcher, Daniel Dennett (of course), Steven Rose, Colin Tudge, and Kit Evans (on an architectural point -- spandrels v. pendentives).

I assume -- I hope -- Fodor will respond. We have the makings of an interesting debate here (but perhaps Fodor will replace references to spandrels with references to pendentives?).

Terry Anderson on Evidence Visualization and Argumentation Schemes; Two Next Big Things in Legal Theory

See the advance copy of Terence Anderson's paper, Visualization tools and argument schemes revisited, Law, Probability and Risk Advance Access published on November 2, 2007. doi:10.1093/lpr/mgm036
Anderson discusses (i) evidence diagramming and (ii) some argumentation schemes proposed by Doug Walton and Tom Gordon.

To get access to Anderson's paper, (i) get a password from your employer or librarian (if, that is, your employer or librarian had the wisdom, prescience, and good sense to purchase a group subscription to Law, Probability and Risk), (ii) ask Terence Anderson of the University of Miami School of Law for a preprint, (iii) wait until the hard copy of Law, Probability and Risk's special issue on evidence visualization in legal settings arrives in your library late this month (November 2007) or early next month (December 2007), or (iv) access Anderson's paper by going to WESTLAW ca. in or after the month of November, 2008. To see a draft of Anderson's original conference paper, go here.

As you might have inferred by reading the frequent posts on this blog about visualization, I think it is more probable than not that evidence visualization may be a next big thing -- a big development -- in theorizing about the workings of evidence and inference in legal settings such as trials and in pretrial and in prelitigation investigation.
I do not say that visualization of evidential inference is the next big thing -- because (I predict) it will soon become apparent -- it is already becoming apparent -- that work on evidential inference has profound implications for law in general and and for general theorizing about law. And growing awareness of this development will also prove to be a big next thing in legal theory -- unless, of course, the economists manage to convince a too-compliant legal audience that problems of inference are nothing more than problems of preference and choice, which I pray will not happen.

In the long run advances in inference technologies and strategies in other fields should ensure that lawyers ( even academic lawyers :-) ) will resist the seductions of economic theory and will continue to pay close attention to the structure of inference. (May I say this: (i) no one ever promised evidence theorists a rose garden; (ii) inference is not an easy nut to crack; and (iii) evidential inference is probably every bit as hard to understand as the human brain [and how could it be otherwise?]. But these facts are no justification for taking the easy way out -- for refusing to struggle with the question of the nature -- or natures -- of inference.)

One More Advance Paper on Visualization of Evidence and Inference

This paper happens to be mine. See Peter Tillers, Introduction: visualizing evidence and inference in legal settings Law, Probability and Risk Advance Access published on October 27, 2007. doi:10.1093/lpr/mgm006 (But the diagram that appears above is just for show; it does not appear in this paper.)

The above link will expire when the hard copy of the paper appears. If you don't have a subscription to the journal Law, Probability and Risk, your employer or your law library may have a group license.

The paper will be available in about 12 months via WESTLAW.

Finally, a draft of the paper (substantially the same as the final version) is available at SSRN. Here are a few extracts (sans footnotes) from an earlier draft of this short paper:

One reason I am interested in visualization of evidence and inference is that I suspect and hope that visualization of evidence and inference can make the logic of formal analytical methods such as Bayesianism more readily intelligible to so-called ordinary people – to people such as judges, jurors, law teachers, and law students, to people such as me.

I am interested in visualization for another reason: I also suspect that visualization may help to remedy or ameliorate certain cognitive limitations that afflict even very extraordinary people, even people with extensive training in logic and mathematics, for example.

These two conjectures of mine can be stated in the following deliberately-suggestive way: I suspect that visualization can make it possible for the extraordinary computational capacity of the ordinary brain to do a better job of taking advantage of whatever assistance explicit formal argument about evidence is capable of providing.

Whether some complexities and nuances of real-world evidence and inference in legal proceedings are beyond the limits of formal analysis is still an open question. But I have a theoretical prejudice that bears on the question of how complex inference should be managed and addressed: I suspect that the people who tend to believe that the solution to the problem of complexity is generally to wash out some details – I suspect that the people who think we need simple and simplifying heuristics are on the wrong track. I suspect that the devil is generally in the details and I suspect that washing out detail generally degrades rather than enhances inferential performance. If I am right about this, every effort should be made to develop tools that makes it possible for human decision makers to increase (rather than decrease) the number of evidential premises and evidential inferences that decision makers should try to consider when they address uncertain factual hypotheses.

Having said that attention to detail is important, I hasten to say that large amounts of detail do present a serious problem, particularly for the enterprise of developing and deploying formal argument about evidence and inference. I take it as gospel that assessment of the sort of evidence ordinarily found in real-world litigation (and in many other decision making situations) usually involves numerous evidential premises and numerous evidential inferences. An abundance of evidentiary and inferential detail presents a serious difficulty for the dream of explicit and comprehensive formal analysis of evidence in legal proceedings. As the number of items of evidence increases and as the number of pertinent possible inferences increases, the resources required to consider the inferences suggested or supported by a body of evidence increases exponentially. If a human actor who uses a formal method of analysis (such as Bayesianism) must allocate even a very small increment of time – one or two or three seconds, let us say – to each premise and to each step in a complex evidential argument, it becomes hard to imagine how a comprehensive explicit formal analysis of even a relatively small amount of evidence presented in a legal proceeding can ever be done by any real human being. Furthermore, the difficulty of just keeping in mind all of the necessary or important parts of an inferential argument (including its evidential premises) seems to increase enormously as the number of evidential premises and inferential links increases; the task is akin to trying to play n-dimensional chess blindfolded.

&&&

I am trying to lead graph theorists down a particular garden path. I have noticed (and I suspect that many other people have noticed) that when graph theorists try to explain themselves, they often use visual images as well as mathematical expressions and equations to describe their reasoning. I imagine (but I don’t really know) that some graph theorists would explain their use of visual images as an unfortunate but necessary concession to the intellectual limitations and weaknesses of dunces such as P. Tillers, who often have trouble following lengthy arguments made only with mathematical expressions. But I wonder if this sort of condescending (though entirely accurate) response offers backhanded support for the conjecture that visual images are sometimes excellent vehicles for getting ordinary human brains to work the way we want them to work – and the way we think that our brains, if properly assisted, can work.

Seek and Ye Shall Find ... Torts, Crimes & Sexual Misconduct

Tortious misconduct, criminal misconduct, and sexual misconduct are everywhere. This was always so. It is even more so today, in this age with its innumerable legal proscriptions and regulations, a large fraction of which are known (if at all) only to certain legal specialists in certain fields of law.

The Associated Press has looked -- for six months -- and it has found (so the AP proclaims) widespread sexual misconduct by secondary and and primary school teachers. See Martha Irvine & Rovert Tanner, Sexual Misconduct Plagues US Schools.

This "discovery" of sexual misconduct by teachers naturally invites the question: How real singular or extraordinary is the "clergy abuse scandal" -- whose "discovery" won a Pulitzer Prize for some Boston Globe reporters?

The authors of the AP article indirectly raise the question themselves:

The findings [of the AP investigation] draw obvious comparisons to sex abuse scandals in other institutions, among them the Roman Catholic Church. A review by America's Catholic bishops found that about 4,400 of 110,000 priests were accused of molesting minors from 1950 through 2002.

Clergy abuse is part of the national consciousness after a string of highly publicized cases. But until now, there's been little sense of the extent of educator abuse.

A quick reading of the AP article might suggest that there is no real comparison between the two scandals: the article reports that 2570 educators were sanctioned for sexual misconduct 2001-2005 and that 4,400 of 100,000 priests were accused of sexual misconduct from 1950 through 2002, but the article notes there are roughly "3 million public school teachers nationwide." However, there is a difference between a charge or accusation of abuse and an official finding of sexual misconduct. Moreover, the sanctions against teachers cover only a five year period, and not a fifty-two year period. (One might surmise that perhaps ca. 25,000 teachers were reported to have been "sanctioned" from 1950-2002.)

The AP article itself notes the following (thoroughly hyperbolic-sounding) claim:

One report mandated by Congress estimated that as many as 4.5 million students, out of roughly 50 million in American schools, are subject to sexual misconduct by an employee of a school sometime between kindergarten and 12th grade.

Well, there's a stunner for you!

In the next sentence, however, the AP article notes: "That figure [4.5 million] includes verbal harassment that's sexual in nature."

Where does this qualifier -- the estimate includes verbal abuse -- where does this qualifier leave us? If we (i) split the baby -- i.e., the estimated total number of incidents of abuse --, (ii) prune away "school employees" who are not teachers, and (iii) somewhat reduce the estimated number of abusers to take into account that some (indeterminate number of) abusers are repeat abusers, perhaps we end up with two million or so (one million?) teachers in American schools who are child sex abusers during, say, a ca. 12-year period. The number of actual incidents of sexual misconduct, one presumes (or, in a sense, hopes), exceeds the number of accusations of sexual misconduct (but one should not entertain this assumption lightly).

Even with all of these qualifications in mind, one might still have reason to speculate that the proportion of abusers among school teachers is substantially greater than among Catholic clergy.

Well now, that's an interesting bit of speculation! Suppose this speculative thought turns out to be true -- and a bit of research reveals that some serious scholars who have studied the question directly and systematically assert that it is true that school teachers are more prone to abuse children than Catholic clergy are.

If the rate of sexual predation by school teachers against minors is in fact higher than the (past or present) rate of such sexual predation by Catholic clergy, is it fair to think of the Catholic clergy as being riddled with sexual predators?

Let's go one step further: Is it possible that the incidence of sexual abuse of children by adults is much higher in the population "parents of minor children" than it is among either the Catholic clergy or school teachers? If this possibility turns out to be true, what are we to make of the "Catholic clergy abuse scandal"?

One more question: Does the American litigation system yield accurate pictures of the ailments that afflict our society? Or does it take decades of retrospection to figure out "what really happened" in our society at large? (My guess is that the latter guess is more true than the former.)

Do You Believe in Sociobiology and Law? -- Chapter 4; A Response to Jerry Fodor

See Simon Blackburn, (under byline Why Pigs Don't Have Wings), Letter, London Review of Books (Nov. 1, 2007).

Do You Believe in Sociobiology and Law? -- Chapter 3; "Immediate Deadly Intent" and Paul Ekman's System of Facial Coding

Ian Hacking, How Shall We Repaint the Kitchen?, London Review of Books (November 1, 2007) (reviewing Cognitive Variations: Reflections on the Unity and Diversity of the Human Mind by G.E.R. Lloyd):

Once the cognitive revolution wrought by Chomsky was under way, nurture came tumbling down. The present imperative to find genes for absolutely everything reinforces the imbalance. Evolutionary psychology now propounds imaginative explanations of things that we do as adaptations acquired in our prehistoric past, while Chomsky has become an old fogey, complaining that we do not know enough about the brain, or about early human beings and their environment, to speculate on evolutionary pressures. (I agree.) But the turn to innate cognitive structures as opposed to socially acquired habits owes more to him than anyone else.

&&&

... Now universal emotions have returned with a vengeance. Paul Ekman led the charge, in parallel to but independently of Chomsky’s cognitive revolution. After doing clinical work on emotions and the body, and a stint as a US army psychologist, he travelled to New Guinea to see for himself, and made observations opposite to those of his predecessors. His conclusions are much like Darwin’s. They are now being enormously bolstered by brain research. At least this much is known for sure: one of the oldest parts of the human brain, the amygdala, is activated by immediate fear, and that is a fact about nature, not nurture, for everyone on the planet.

This is not an academic issue. ... The War on Terror supports research to design computer programs based on Ekman’s Facial Action Coding System, which will pick out in passenger queues the faces of people planning to blow up planes; Ekman’s personal website lists a project aimed at detecting expressions of IDI – Immediate Deadly Intent. He also plans to process pixels in order to expose a demeanour that betrays ‘lies about the intent to commit a harmful act’. Very roughly speaking, much of the cognitive science community thinks this approach is right on, even if IDI is taking things too far. Some anthropologists think it is nuts, megalomaniac.

Nurture did not stay tumbled down for long. All sorts of pressing criticisms of nature began to emerge. The debate now infects every branch of the human sciences. Nature may still be winning, for the moment, almost everywhere, but much less is settled than one might have expected. ...

P. Tillers on Ekman:

If you look at me crossly -- animal-like, as it were --, I will infer hostile intent. I may even arrest and imprison you -- to prevent a deadly attack. And I have a facial chart in my hip pocket to back me up.

I must confess that this sort of stuff -- stuff like Paul Ekman's IDI, that is -- strikes me as absurd; it strikes me as not much better than phrenology. See P. Tillers, Unnatural Lie Detectors (Feb. 5, 2006). It would strike me as even more absurd (and frightening) to find that people in Homeland Security really take this sort of stuff seriously. (Rewrites, or updating, of 1984 and Brave New World seem to be called for -- this time with a narrative that emphasizes the dangers of government reliance on shoddy science.)

Expert Testimony about Credibility, and the State of Legal Scholarship

I yield to no man or woman in my passion for "theory" and philosophical inquiry. Yet, I worry about the condition of legal scholarship in the U.S.

Question: What prompted the most recent wave of my unease?

Answer: I was frantically preparing for class and I discovered the interesting Texas case Schutz v. Texas, 957 S.W.2d 952 (Tex.Crim.App. 1997).

As I wrote in my class notes, the opinion of the Texas Court of Criminal Appeals in this case -- a case involving charges of aggravated sexual assault against a young child -- has "an elaborate but useful discussion ... of whether various types of expert evidence do or do not amount to prohibited opinion about the truthfulness of witnesses such as children. Cases in various states are surveyed. Court thinks that the prohibition in Rule 608(b) applies, in principle, to expert testimony about credibility or factors that affect the credibility or truthfulness of a witness. The issue is what forms of expert testimony amount to opinion about truthfulness vel non." I also discovered that the court had assembled, plainly after much labor, a comprehensive table (in an appendix) summarizing what forms of expert testimony affecting credibility and truthfulness are and are not admissible. I further found a simple but incisive concurring opinion and I also found a dissenting opinion that raised some excellent questions about the court's approach.

Well now -- I thought to myself -- this case is quite a find. The problem of sexual abuse of children is important. Texas is a big and populous state. The credibility of witnesses is almost always important in child abuse prosecutions. Experts or supposed experts are playing an increasingly important role in such criminal trials. And the question of the extent to which experts can give evidence that speaks to the believability, credibility, and truthfulness of witnesses who report being sexually abused is important. With these thoughts in mind, I did a LEXIS search for law journal articles about the Texas court's important and thoroughly-researched opinion in Schutz about this last question.

Question: What do you think I found?

Answer: Almost nothing.

I found only three brief references to Schutz in three law journal articles. Keep in mind that the Tex. Ct. Crim. App. decided Schutz and issued its opinion ten (10) years ago.

Something is wrong, isn't it?

N.B. Practicing lawyers do not think litigation and trials are unimportant. Judging by the growth of litigation departments in law firms during the last several decades, practicing lawyers (not to speak of judges) think litigation is perhaps more important than it ever was.

So what explains the paucity of academic commentary on cases such as Schutz? More important, what is the justification for this barren academic garden? (Note, the justification -- if any -- is not the importance of "theory." Good theorizing by legal academics can have very important "practical" implications. [Some people even believe that any theory worth its salt must have practical, or real-world, implications. I don't go that far. Still, the academic world should not be indifferent to "law in action.")

I shoot form the hip in this post. The reader will forgive me, I trust. I will return to this topic later.

Comparative Numbers

The following topics had the following number of GOOGLE news stories at ca. 3:30 p.m.:

World Series: 3,718
Fires in California: 2,816
Turkey-Iraq-Kurd Conflict: 2,588
Polish Election: 976

The New Skype

Anne Applebaum, the author of Gulag: A History (Doubleday/Random House, 2003) [for which she won a Pulitzer Prize], has an interesting article in Slate on the role the (often miserable) past in the consciousness of Eastern Europeans. See Skype Dreams, Slate (October 15, 2007).

The Early Life of Korba the Dread

See the book review in the NYTimes of Simon Sebag Montefiore, Young Stalin (Knopf, 2007). Tagline: Stalin was no dummy. He was even a poet. But he was definitely a thug.

A Pean to Vasily Grossman's Life and Fate

See the (slightly belated) book review in 29 London Review of Books No. 20 (October 18, 2007). The reviewer is John Lanchester. The title of the review: "Good Day, Comrade Shtrum." (The caller is the dread Korba, Iosif Vissarionovich, Stalin.)

"Do You Believe in Sociobiology and Law?" - Chapter II

If so (and even if you don't), see the lovely and incisive essay: Jerry Fodor, Why Pigs Don't Have Wings, 29 London Review of Books No. 20 (October 18, 2007).

Freedom Vel Non Sometimes Hangs on a Hair -- or on a Confession

Steven Avery's (earlier) freedom hung on a (single) hair. His alleged accomplice's freedom, it appears, will hang on a confession. See John Lee, Dassey appeal will focus on confession, greenbaypressgazette.com (October 17, 2007). [I proclaim: The day has come when many newspapers will be known by their URL name rather than by their hard copy newspaper name.]

For the story of Steven Avery, Penny Beerntsen, the judicial exoneration of Avery for the brutal rape of Penny Beerntsen, and the story of Avery's subsequent murder of Teresa Halbach -- subsequent to his exoneration for the crime committed against Penny Beerntsen, see, e.g., here and here.

Perhaps in the Dassey appeal we will witness a reprise of the Central Park Jogger Case?

The story of the confessions in the Central Park Jogger case has gone into the history books as a "case study" in how confessions can go wrong and mislead. But the question of the truth or falsity of the confessions in that case is very probably much more complicated than the emerging dominant legend has it. My own guess is that the the Central Park Jogger case -- like the Clarence Thomas-Anita Hill imbroglio -- is a controversy that involves degrees. By this I do not mean to advance the true but (in this context) trivial statement that judgments about historical events are always subject to some degree of uncertainty. I mean instead to emphasize the simple notion of partial truth: it is entirely possible -- and, I suspect, very probable -- that some parts of the confessions in the Central Park Jogger case are true and some parts are false.

It is also possible that some, many, or all of the confessions in the Central Park Jogger case were shaded by the confessors in an effort to deflect suspicion away from the individuals doing the confessing. I remain disturbed by the possibility that Reyes had a motive to make a false confession. And, as always, I insist that DNA evidence by itself is never conclusive evidence of guilt or innocence in any case (see, e.g., here (DNA Redux to the Fourth Power, September 8, 2002) and here). The probative force of DNA evidence depends on a myriad of surrounding circumstances and assumptions. In the Central Park Jogger case, for example, there are multiple scenarios that could explain how the defendants in the Central Park Jogger Case might have been guilty of attacking the Central Park jogger even though only the DNA of Reyes, who was not one of the people charged with and tried for attacking the jogger, was found on the body of the jogger-victim.

But back to the Steven Avery and Brendan Dassey cases. I appear to be one of the very few people on earth who harbors any serious doubt about Steven Avery's innocence of the brutal rape of Penny Beernsten; as I explained in earlier posts -- here and here, a quirk might explain why the hair of a prison colleague of Steven Avery was apparently left on Penny Beernsten's body at the time of the rape. (It is possible that Avery was the carrier of that hair. Avery and his prison colleague lived near each other, and perhaps they were friends or acquaintances, and perhaps Avery's friend visited Avery at his home or had other physical contact with Avery.) I hope that modern folk wisdom dressed up as science -- this time, folk wisdom about confessions -- will not lead in this instance -- in the instance of --- Brendan Dassey -- to the exoneration of a guilty man.

Part of the the reason I worry about the possibility that one of Halbach's actual killers will be improperly "exonerated" is that I still shudder at the possibility that Penny Beernsten was led, probably through no one's moral fault, to hug her rapist and , to apologize to the man who perhaps actually brutally raped and assaulted her for her supposedly mistaken identification of him as the rapist.

&&&

It occurs to me that only the actual words of apology that Peggy Beernsten uttered can fully explain why I shudder at the possibility that Avery was exonerated of a gross crime that he actually committed. Thus Peggy Beernsten, in her own words:

A couple of years after the attack I remember saying to my therapist that although I felt my assailant needed to be in prison, I was struggling with the knowledge that he'd left five children behind. She didn't understand this; like most people her attitude was, “You should want to kill the son of a bitch.”
... It happened in a beautiful place. I was out jogging when a man grabbed me from behind and pushed me into a wooded area. When I screamed, he choked my windpipe; when I fought back as he tried to rape me, he began beating and strangling me. Finally I lost consciousness. My last thoughts were: “I wish I'd kissed my son goodbye this morning” and “my daughter’s last vision of me will be of my dead, beaten body.”
Two good Samaritans found me, bleeding and naked in the sand dunes. ...
Later [the police] put nine photos by my bedside. I presumed the suspect was among them. Steve’s photo was in there and I selected it. ...
At the live line-up I looked at eight men and again picked out Steve Avery. I had selected his photo, and his image had become enmeshed with my memory of the real assailant. In my mind, Steve was the only person in those photos and in that line-up. As it turned out, my actual assailant was in neither.
...
After the assault I went into a deep depression. ... Then one day I read about a young woman, ten years younger than me, who had gone out jogging and been murdered. As I heard how her strangled body had been found in a swamp, I realized that I’d been given a second chance, whereas she had not.
At about the same time I heard a talk on Restorative Justice by a man called Dr. Mark Umbreit. He talked about how liberating it can be for victims to let go of their anger and hatred, and suddenly I felt a huge weight lift. At the next break I headed out to the state park where the assault had taken place. For the first time I wasn't afraid.
...
Then, in 2001, Steve’s attorney contacted The Wisconsin Innocence Project, who agreed to help with his case. A year later there was a motion to release additional biological materials for DNA testing. Two hairs were tested: one was identified as mine, and the other belonged to someone else – but that someone was not Steve Avery. In the CODIS database they got a direct hit with a man named Gregory Allen, who in 1995 had brutally raped a woman in Green Bay, Wisconsin, and was subsequently serving a 60-year sentence. Gregory Allen looks very much like Steve Avery.
When my attorney told me that the judge had reversed the verdict, I wanted the earth to swallow me. After all, I was partly responsible for identifying the wrong man, and no one can give Steve back those lost years. Not a day goes by when I don't think about the woman Gregory Allen raped in 1995, or wonder how many other women’s lives were drastically altered in those years when he was walking free.
I sunk into another deep depression and, feeling utterly powerless, wrote Steve a heartfelt apology letter. In it I stated that I felt like an offender and offered to meet with him. I'm so grateful that he agreed.
Steve is a very quiet man, but he gave me a hearty handshake and I told him how terribly sorry I was. After a bit, I asked if his parents would like to come in so I could apologize to them too. He said his mother would be OK but that his father was still kind of bitter. But in the end both of them agreed to meet me.
When it was time to conclude the meeting I stood up and went over to Steve and said, “Is it alright if I give you a hug?” He didn't even answer but just grabbed me in a big bear hug. Then I whispered, “Steve, I'm so sorry.” And he said, “Don't worry, Penny; it’s over.”
That was the most grace-filled thing that’s ever been said to me ...

Peggy Beernsten was speaking about a man who mutilated a cat, murdered a young reporter, probably dismembered the reporter's body, and torched the reporter's car in an effort to conceal his crimes.

Still More Advance Papers on Visualization of Evidence and Inference in Legal Settings

Please see Law, Probability and Risk advance papers web page:

17 October 2007

Bart Verheij, Argumentation support software: boxes-and-arrows and beyond, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm017

Neal Feigenson and Richard K. Sherwin, Thinking beyond the shown: implicit inferences in evidence and argument, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm016

John L. Pollock, Reasoning and probability, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm014

A Public Relations Disaster -- for Whom?

Whose "fault" is it if an archdiocese in California sells off convents, orphanages, schools, hospitals, or hospices etc. to pay damages in a clergy sex abuse settlement? Some newspapers know the answer, of course: the archdiocese. See, e.g., With Malice toward Nuns, Slate (October 4, 2007). But perhaps one should at least admit the possibility that facilities for worthwhile charitable and religious work will have to be sold even after "lavish" or "unnecessary" church facilities are sold? Moral: there is no free lunch; there is a price for everything, including enterprise liability of non-profits for the wrongful acts of the enterprise's agents.

N.B. I have lived too long to believe all pieties, including the piety that plaintiffs' lawyers are only interested in doing good or that any and every recovery on behalf of wronged plaintiffs adds to justice. Sometimes it just 'tain't so; e.g., some lawyers (and plaintiffs) act mainly out of mercenary motives and sometimes the wrong people are made to pay for the wrongs and sins of others -- and sometimes the alleged wrongs that lead to settlements did not occur. My nostrils tell me that although sexual abuse of minors by Catholic clergy was (and presumably still is) a very real phenomenon, some archdioceses are settling for grand sums mainly to buy peace, and not because they believe that they are or should be morally or legally responsible for all or most of the sexual predations that are alleged in "survivors'" lawsuits. (I wonder: Does the southern California $600 million settlement foretell the demise of hierarchically-organized religious organizations in the U.S.A.?)

How Far Is the Farthest Star (not galaxy) that We Human Beings Have Seen?

I'm not sure of the answer to my question. But I can report a report that a supernova at a distance of five billion light years has been observed. See NASA's Astronomy Picture of the Day for October 16, 2007.

Another way of expressing this distance: 186,282 x 60 x 60 x 24 x 365.25 x 5,000,000,000 = approximate number of miles; alternative: 5,878,625,373,183 x 5,000,000,000; alternative: very roughly (slight exaggeration): 30,000,000,000,000,000,000,000 miles

This supernova is so bright that it can be seen with a small telescope.

Is the structure of the brain more majestic than the structure of the universe? Or are these two structures equally majestic -- and, indeed, will knowledge of one eventually require and entail knowledge of the other -- or, indeed, is such conjoint knowledge of the macrocosmic and the microcosmic already at work?

Wikipedia and the Law of Evidence

Wkipedia is, I guess, a vast experiment in knowledge organization -- or ... whatever.

In the case of the law of evidence, the experiment is almost a complete failure. See entry Evidence (law). The quality of the entry is ... abysmal.

More Advance Copies of Conference Papers on Visualization of Evidence & Inference

Advance copies of the below papers on visualization of evidence and inference are now available on the website of the Oxford journal Law, Probability and Risk. The hard copy special issue with 20+ papers and comments will be published this November or December.

Douglas Walton, Visualization tools, argumentation schemes and expert opinion evidence in law, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm033

Tim van Gelder, The rationale for Rationale, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm032

Ron Loui, Comment on the Cardozo conference on graphic and visual representations of evidence and inference in legal settings, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm028

Thomas F. Gordon, Visualizing Carneades argument graphs, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm026

Dale A. Nance, The inferential arrow: a comment on interdisciplinary conversation, Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm035

John D. Lowrance, Graphical manipulation of evidence in structured arguments, Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm011

David A. Schum and Jon R. Morris, Assessing the competence and credibility of human sources of intelligence evidence: contributions from law and probability, Advance Access published on August 28, 2007. doi:10.1093/lpr/mgm025

Vern R. Walker, Visualizing the dynamics around the rule–evidence interface in legal reasoning, Advance Access published on August 19, 2007. doi:10.1093/lpr/mgm015

William Twining, Argumentation, stories and generalizations: a comment, Advance Access published on August 13, 2007. doi:10.1093/lpr/mgm008

Kevin D. Ashley, Comment on Lowrance's ‘Graphical manipulation of evidence in structured arguments’, Advance Access published on July 23, 2007. doi:10.1093/lpr/mgm012

Floris Bex, Susan van den Braak, Herre van Oostendorp, Henry Prakken, Bart Verheij, and Gerard Vreeswijk, Sense-making software for crime investigation: how to combine stories and arguments, Advance Access published on July 7, 2007. doi:10.1093/lpr/mgm007

Amanda B. Hepler, A. Philip Dawid, and Valentina Leucari, Object-oriented graphical representations of complex patterns of evidence, Advance Access originally published on May 24, 2007. This version published June 13, 2007. doi:10.1093/lpr/mgm005

New blog: Open to persuasion

See the fascinating new blog by David Price: Open to persuasion.

It appears that even the office of the prime minister of the UK is interested in strategies for mapping argument, in this instance public argument and debate about political, economic, and social issues.

David Price has software. He calls it Debatemapper. It is online software ("cloud software"?). It is free. Go to http://www.debatemapper.com to get the story (and the software) firsthand.

Your assignment, dear Reader: Discuss the links between Debatemapper and procedures such as neo-Wigmorean charting of inferential argument from and about evidence! (Thank you.)

Evidence-Based Law Librarianship?

There is a phenomenon known as evidence-based medicine (EBM) or evidence-based health care (EBHC). The movement toward EBM -- at least when denominated as such -- seems to be centered in the UK. There is substantial controversy about EBM. Now there is a proposal to explore the possibility of evidence-based (law) librarianship (EBL). See Evidence-Based Librarianship: An Opportunity for Law Librarians?

Reflections on Justice Thomas and the Story of His Life

Many readers and most of the media will be interested in Justice Clarence Thomas' memoir mainly because of what the memoir says or hints about Justice Thomas' views about constitutional treatment of matters such as race and abortion. However, personal perspectives and experiences will strongly affect the way the ordinary reader reacts to Thomas' account of his life.

Race plays a central role in Thomas' account of his life. (His bitterness about racial slights and racial mistreatment may surprise some readers.) I am "White" and I have not experienced racial slights and discrimination. However, poverty is also an integral part of the story that Thomas tells. I found this part of Thomas' story to be particularly gripping. This is surely because I also grew up poor. (Some of the time Thomas was poorer than I was, but -- believe it or not -- much of the time I was poorer than he was.)

Justice Thomas has little affection for Yale Law School, which is where he got his law degree. This is partly because he felt patronized by Yale faculty members and by his fellow law students and because he deeply resented being patronized because of his race. But part of his bitterness about Yale stems, I think, from his bitter experiences with poverty.

Because Thomas had been poor, he was relatively "unpolished" when he entered Yale Law School (e.g., no college vacation trips to Egypt to do archeology or to Florence to study Renaissance architecture). And because of his relative poverty while at Yale, he could not afford much ordinary entertainment while he was there. I suspect that both of these factors embittered him about Yale.

Although many observers in the legal profession may sympathize with discomfort experienced by a student at a law school because of the student's poverty, they may find it hard to understand why such discomfort would make someone so bitter about a place such as Yale, which, after all, admitted Thomas and tried -- by its lights -- to treat him and similar students well. But this sort incomprehension about Thomas' feelings about Yale exists, I think, because very, very few people at institutions such as Yale and Harvard (or in the legal profession as a whole) have experienced deep poverty.

I went to Yale College and Harvard Law School. By and large, I loved both of them. But only by and large. I vividly remember not having enough money to go on a date or even to go to a movie for months at a time. I remember, just as vividly, feeling unpolished -- and, worse yet -- being unpolished in comparison with my fellow students. These are hurts that can be forgotten and overcome -- but these sorts of hurts are not easily forgotten, and they are perhaps never fully overcome.

P.S. The above comments do not constitute an endorsement of Justice Thomas' theory of law and judging, his approach to constitutional law, or an endorsement of any other similar thing.

Economic Analysis of Evidence (and Inference)

Economic analysis of evidence and of the law of evidence is a good thing; that is, it is good that it is being done -- that is to say, I am (on the whole) glad that people are doing this sort of thing. However, I do feel compelled to make the following pithy observation:

Decision and inference intersect and interact.
But never shall the 'twain entirely merge.

Isn't that right?

More Mush about Wrongful Convictions from the NYTimes

In a NYTimes article dated August 19, 2007, the reporter wrote:

Why Would Someone Falsely Confess?

Because most suspects who confess to a crime are in fact guilty, it is not surprising that most of us have a hard time accepting the idea that someone would falsely confess. ...

That [innocent people don't confess to crimes they didn't commit] is certainly the conventional wisdom. [Tillers: Oh yeah? Sez who?] ... According to the Innocence Project, 49 people whose convictions relied on false confessions have been proved innocent and released from prison based on DNA evidence.

Another math quiz: If 25% of the wrongful convictions overturned by the Innocence Project [Tillers: assume circa 49/207] are the "result of" [Tillers: What does this mean?] false confessions, does it follow that circa 25% of all confessions are "false"? (Hint: "No, not necessarily." [By now you know the spiel here, right?])

Well now, let me get this straight. The suggestion is that 75% of wrongful convictions are the result of mistaken identifications and 25% are the result of false confessions. Therefore: There are no other causes of wrongful convictions. Can that be? Oh wait; I see now that the Innocence Project (reportedly) asserted that in 25% of the wrongful convictions it overturned there was "reliance" on a false confession. Well, there's mush for you. We want to know the extent to which false confessions (and mistaken identifications etc.) are responsible for wrongful convictions. That's because we want to know how much the frequency of wrongful convictions would be reduced if the frequency of false confessions (or mistaken identifications etc.) were reduced. The mushy numbers we are given here don't give us answers to such questions.

Numbers, numbers, ... ooooh those %$&% numbers!

Does That Depend on What the Meaning of "Led To" Is?

"Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions." Exoneration Using DNA Brings Change in Legal System, NYTimes (October 1, 2007)

Does the Innocence Project therefore mean to assert that false confessions can have led to at most 25% of the 207 wrongful convictions mentioned above? Or does the meaning of the claim about the role of eyewitness identifications in the 207 convictions depend on what the meaning of "led to" is?

A (simple) math (or logic) quiz: If 75% of ALL wrongful convictions are the result of mistaken eyewitness identifications, does it follow that eyewitness identifications are mistaken 75% of the time? (Hint: The answer is "no." For example, the statistic 75% may be true and yet it may also be true that eyewitness identifications are correct 99.9999997% of the time [and it may also be true that eyewitness identifications are correct only .0000001% of the time].)

In the same NYTimes article the reporter (Solomon) reports:

“It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

Does Mr. Patenaude mean to say that until the advent of DNA, people such as judges, lawyers, law teachers, jurors, and so on believed that eyewitness identifications are infallible?

What utter nonsense!

I recall an editorial by the New York Times a few years ago that made a similar claim about confessions -- an editorial that asserted that DNA had revealed that confessions are not infallible. There too we unquestionably -- infallibly -- witnessed utter nonsense: in that instance, the ludicrous tacit assertion that before the advent of DNA people did not realize that confessions can be false. I wonder: Had the New York Times heard of Miranda, Escobedo, et al.? And in connection with the question of the fallibility or infallibility of false identifications, I wonder: Have NYTimes reporters heard of pre-DNA identification cases such as Gilbert v. California, 388 U.S. 263 (1967)? If not, perhaps NYTimes reporters -- and NYTimes editorial writers -- should get a bit of legal training.

Vox Putin-Populi

David Remnick, Letter from Moscow: The Tsar's Opponent, The New Yorker (October 3, 2007):

In recent years, Putin has insured that nearly all power in Russia is Presidential. The legislature, the State Duma, is only marginally more independent than the Supreme Soviet was under Leonid Brezhnev. The governors of Russia’s more than eighty regions are no longer elected, as they were under Yeltsin; since a Presidential decree in 2004, they have all been appointed by the Kremlin. Putin even appoints the mayors of Moscow and St. Petersburg. The federal television networks, by far the main instrument of news and information in Russia, are neo-Soviet in their absolute obeisance to Kremlin power. “Putin is no enemy of free speech,” Ksenia Ponomareva, who worked on his first Presidential campaign, told the St. Petersburg Times. “He simply finds absurd the idea that somebody has the right to criticize him publicly.”

Smearing a Witness versus Impeaching a Witness

The by-line to Prof. Anita Hill's NYTimes Op-Ed piece proclaims, "The Smear This Time."

Assume -- for the sake of argument -- that Prof. Anita Hill lied. Question 1: Granting that assumption, did Prof. Hill smear Justice Clarence Thomas by charging him with sexual misconduct? Question 2: Granting the same assumption, by mentioning matters that raise questions about Prof. Hill's credibility did Justice Thomas smear Prof. Hill?

In a typical trial the trier of fact is not afforded the privilege of being able to tell -- without having any evidence -- who is telling the truth and who isn't. Sometimes one way of figuring out which story is true and which story is false is by figuring out who is lying and who isn't. Sometimes one can better figure out if a witness is lying is by having evidence about what might lead a person to lie. Justice Thomas suggested some matters that might have led Prof. Hill to lie. It is of course possible that Justice Thomas lied. But it is also possible he didn't.

Some Advance Copies of Papers on Graphic and Visual Representation of Evidence and Inference in Legal Settings

See Advance Access, Law Probability and Risk (check with your university's or law school's librarian about getting a password; if you do not have a password, this web page provides access only to the abstracts).

The advance papers include:

John D. Lowrance, "Graphical manipulation of evidence in structured arguments," Law, Probability and Risk Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm011

Kevin D. Ashley, "Comment on Lowrance's ‘Graphical manipulation of evidence in structured arguments’," Law, Probability and Risk Advance Access published on July 23, 2007. doi:10.1093/lpr/mgm012

Floris Bex, Susan van den Braak, Herre van Oostendorp, Henry Prakken, Bart Verheij, and Gerard Vreeswijk, "Sense-making software for crime investigation: how to combine stories and arguments?," Law, Probability and Risk Advance Access published on July 7, 2007. doi:10.1093/lpr/mgm007

William Twining, "Argumentation, stories and generalizations: a comment," Law, Probability and Risk Advance Access published on August 13, 2007. doi:10.1093/lpr/mgm008

Vern R. Walker, "Visualizing the dynamics around the rule–evidence interface in legal reasoning," Law, Probability and Risk Advance Access published on August 19, 2007. doi:10.1093/lpr/mgm015

David A. Schum and Jon R. Morris, "Assessing the competence and credibility of human sources of intelligence evidence: contributions from law and probability," Law, Probability and Risk Advance Access published on August 28, 2007. doi:10.1093/lpr/mgm025

Amanda B. Hepler, A. Philip Dawid, and Valentina Leucari, "Object-oriented graphical representations of complex patterns of evidence," Law, Probability and Risk Advance Access originally published on May 24, 2007. This version published June 13, 2007. doi:10.1093/lpr/mgm005

Dale A. Nance, "The inferential arrow: a comment on interdisciplinary conversation," Law, Probability and Risk Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm035

The hard copy version of the special triple issue containing all of the papers and comments will very probably appear in November, 2007. Additional papers will appear on the "Advance Access" web page from time to time. Stay tuned!

Do You Believe in Sociobiology and Law?

Ibn al-Shatir's model for the appearances of Mercury, showing the multiplication of epicycles in a Ptolemaic enterprise. 14th century C.E.

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If you are an enthusiast for law and sociobiology -- law's version of ultra-Darwinism (or the modern equivalent of Mr. Herbert Spencer's Social Statics) --, you should take a gander at David Stove, So You Think You Are a Darwinian?

Extract:

Of course most educated people now are Darwinians, in the sense that they believe our species to have originated, not in a creative act of the Divine Will, but by evolution from other animals. But believing that proposition is not enough to make someone a Darwinian. It had been believed, as may be learnt from any history of biology, by very many people long before Darwinism, or Darwin, was born.

What is needed to make someone an adherent of a certain school of thought is belief in all or most of the propositions which are peculiar to that school, and are believed either by all of its adherents, or at least by the more thoroughgoing ones. In any large school of thought, there is always a minority who adhere more exclusively than most to the characteristic beliefs of the school: they are the ‘purists’ or ‘ultras’ of that school. What is needed and sufficient, then, to make a person a Darwinian, is belief in all or most of the propositions which are peculiar to Darwinians, and believed either by all of them, or at least by ultra-Darwinians.

I give below ten propositions which are all Darwinian beliefs in the sense just specified. Each of them is obviously false: either a direct falsity about our species or, where the proposition is a general one, obviously false in the case of our species, at least. Some of the ten propositions are quotations; all the others are paraphrases.

One of Stove's targets -- Stove died in 1994 -- was Richard Dawkins. Extract:

...I start from the present day, and from the inferno-scene - like something by Hieronymus Bosch - which the 'selfish gene’ theory makes of all life. Then I go back a bit to some of the falsities which, beginning in the 1960s, were contributed to Darwinism by the theory of ‘inclusive fitness’. And finally I get back to some of the falsities, more pedestrian though no less obvious, of the Darwinism of the 19th or early-20th century.

1. The truth is, ‘the total prostitution of all animal life, including Man and all his airs and graces, to the blind purposiveness of these minute virus-like substances’, genes.

This is a thumbnail-sketch, and an accurate one, of the contents of The Selfish Gene (1976) by Richard Dawkins. It was not written by Dawkins, but he quoted it with manifest enthusiasm in a defence of The Selfish Gene which he wrote in this journal in 1981. Dawkins’ status, as a widely admired spokesman for ultra-Darwinism, is too well-known to need evidence of it adduced here. His admirers even include some philosophers who have carried their airs and graces to the length of writing good books on such rarefied subjects as universals, or induction, or the mind. Dawkins can scarcely have gratified these admirers by telling them that, even when engaged in writing those books, they were ‘totally prostituted to the blind purposiveness of their genes Still, you ‘have to hand it’ to genes which can write, even if only through their slaves, a good book on subjects like universals or induction. Those genes must have brains all right, as well as purposes. At least, they must, if genes can have brains and purposes. But in fact, of course, DNA molecules no more have such things than H2O molecules do.

For more from Stove see Darwinian Fairytales, Aldershot: Avebury Press, 1995, repr. New York: Encounter Books, 2006. A reviewer (Martin Gardner) said of this book:

Whatever your opinion of "Intelligent Design," you’ll find Stove’s criticism of what he calls "Darwinism" difficult to stop reading. Stove’s blistering attack on Richard Dawkins’ "selfish genes" and "memes" is unparalleled and unrelenting. A discussion of spiders who mimic bird droppings is alone worth the price of the book. Darwinian Fairytales should be read and pondered by anyone interested in sociobiology, the origin of altruism, and the awesome process of evolution.

The blurb by Encounter Books states:

Philosopher David Stove concludes in his hilarious and razor-sharp inquiry that Darwin’s theory of evolution is “a ridiculous slander on human beings.” But wait! Stove is no “creationist” nor a proponent of so-called “intelligent design.” He is a theological skeptic who admits Darwin’s great genius and acknowledges that the theory of natural selection is the most successful biological theory in history. But Stove also thinks that it is also one of the most overblown and gives a penetrating inventory of what he regards as the “unbelievable claims” of Darwinism. Darwinian Fairytales is a must-read book for people who want to really understand the issues behind the most hotly debated scientific controversy of our time.

Quasi-Libertarian Reflections on Sex, Statutes of Limitations, Evidence, Money, Malleable Memory, and Zealotry

Yesterday and today I was musing about an announcement of a forthcoming (September 25) Oprah-style and politician-studded event at my law school.

The event is styled a "call to action for state & national laws lifting the statute of limitations on sexual abuse victims' lawsuits."

Among the speakers are to be a number of "survivors" -- alleged victims of alleged sexual abuse. These survivors, it appears, are to explain to the assembled law students, lawyers, law professors, and, presumably, reporters -- why remedial legislation is necessary.

Adding their voices to this "call for action" are be two New York State legislators, who also apparently favor the "lifting" of limitations periods for "sexual victims' lawsuits."

Professor Marci Hamilton, it appears, is to be the principal speaker at the event and it appears that she is the principal organizer of the event. She is identified as a visiting professor at Princeton University (and there is also an allusion to her status as a faculty member at my law school, Benjamin N. Cardozo School of Law, Yeshiva University). The announcement also states that Prof. Hamilton serves as "legal advisor to victims of sexual abuse in several noteworthy cases around the country."

Indeed, I am given to understand that prof. Hamilton is the principal legal advisor to SNAP, the "Survivors Network of those Abused by Priests." Via brief GOOGLE-ing I discovered that SNAP holds annual conferences. A SNAP web page states that the expected benefits of the 2008 conference include a "great opportunity to network with survivors and supporters, learn, heal, and visit the sites of beautiful Chicago!" (emphasis in the original text).

Professor Hamilton, the "call to action" announcement recites, is to "talk about the growing national grassroots movement for legislation" and about her book which, the announcement recites, "identifies (the proposed legislation's) rather surprising opponents."

One assumes that Prof. Hamilton was surprised by the identity of the opponents rather than by their behavior. Which opponents were unexpected, I wonder. Civil libertarians? Did Professor Hamilton expect that only sexual predators would oppose her legislative proposals?

For aught that appears from the announcement of the "call to action" event, the sought-for remedy is abolition of all statutory limitations on the time within which civil actions for sexual abuse must be commenced -- rather than merely an expansion of the the time period within which civil actions for sexual misconduct must be commenced.

So the aim of the campaigners is to allow civil actions for wrongful conduct regardless of how much time has passed since the alleged misconduct? Do the campaigners want to allow civil actions to be brought, say, ten years after the alleged abuse? Twenty years? Three decades? Four? More? Really?

Are the campaigners indifferent to the dangers of claims based on long-distant events? Or did they consider the possible dangers and conclude only after due deliberation that the benefits of allowing lawsuits based on very old transactions are outweighed by the benefits?

As I thought along these lines, I became a bit less professorial in my thinking at this point; i.e., my mind wandered. I thought to myself: "These folks -- these campaigners -- evidently believe in a zero tolerance policy towards sexual predators and wrongdoers of like ilk. Do they therefore think that any price is worth paying and any risk, worth taking for the sake of vindicating the claims of victims of sexual abuse?" As I thought this thought, Senator Barry Goldwater's dictum came to my mind: "Extremism in the defense of liberty is no vice." Perhaps this saying should be modified to say this: "Zealotry in the pursuit of justice is no evil." (Or something like that.) So I wondered: Are the "call to action" campaigners zealots? (One important duty of a lawyer, it used to be said, is zealous representation of the client.)

The original zealots were apparently Zealots, who were a faction of Jews in the first century C.E. who waged a fierce military struggle for independence from Roman Imperial rule. This campaign ended with the sack of Jerusalem in 70 C.E. See Henry Chadwick, The Church in Ancient Society: From Galilee to Gregory the Great pp. 6-7 (Oxford University Press, 2001).

So, to summarize the point toward which I am slithering, is it possible that the real theory of the campaign for justice for survivors of sexual predation is fairly simple and straightforward: the only important thing is to nail those &%$*%% (alleged) miscreants -- and if a lot of eggs have to broken to make this omelette, so be it?

That's the way I was thinking. But then I regained self-control of my mind. I decided to do a brief internet search. Here is what popped up first: a Denver Post newspaper article reporting that the Colorado Supreme Court had rejected the attempt of the Roman Catholic Archdiocese of Denver to intervene in a civil action and terminate a lawsuit against two priests (one of them now dead) for sexual abuse -- alleged sexual abuse -- that occurred (if it did) forty (40) years ago. See Electra Draper, "Sex abuse lawsuits proceed," Denver Post p. B-2 (September 14, 2007).

I assume that the dead priest's estate became the defendant in the lawsuit against that priest. But this led me to wonder: How good is that dead priest's memory now of forty year-old events?

Prof. Hamilton reportedly said of the Colorado Supreme Court's ruling: "Gradually, more judges are realizing that children can't recognize and report sex crimes immediately. The survivors of these heinous crimes need time to understand and overcome their trauma." Id.

Well, that's an interesting thought, for at least a couple of reasons.

The first interesting thing is the notion that it takes some alleged victims forty years (sometimes more?) "to understand and overcome their trauma."

Another interesting thing is that these particular survivors managed "to understand and overcome their trauma" after forty years and not, for example, after twenty, thirty, or fifty years. In this instance this was rather convenient timing for the plaintiffs. Is it impertinent to ask what opened the minds and emboldened the hearts of these survivors at this particular time -- rather than at some other time? Is it possible that the prospect of a substantial financial recovery did so? Is it therefore possible that the supposed recovery of allegedly long-suppressed memories of many supposed victims is not a genuine recovery but is the result of invention or the formation of honestly-held but false beliefs and memories that are caused by the hope of gaining a very substantial financial benefit? (If you don't think so, I would like to sell you a well-known bridge at a very reasonable price.)

A spokesman for SNAP dismissed the Denver Archdiocese's effort to terminate these lawsuits as being belated with these words: "It's sad every time a Catholic bishop tries to exploit legal technicalities to protect himself from tough questioning in court." I thought to myself: "The gall of the Denver Archdiocese! To invoke a plausible legal defense -- a defense that if recognized might even serve, on balance, to reduce rather than increase miscarriages of justice! Let's keep such technicalities out of our courtrooms and out of our law, no?"

The Denver case reminded me of the Massachusetts case in which a Massachusetts federal trial judge allowed a female plaintiff to commence a civil action against her cousin for allegedly sexually abusing her 47 years earlier, when she was a young woman. See Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996). The plaintiff was 68 years old and her cousin was even more elderly when she commenced her lawsuit. Judge Harrington denied her cousin's motion for summary judgment. He had argued that plaintiff's civil action was barred by the applicable Massachusetts statute of limitations. Judge Harrington disagreed. See "Time and Justice in Massachusetts," August 25, 2002. (Harrington's theory was, roughly, that the plaintiff's impaired or turbulent emotional state might have prevented her from adequately appreciating the abuse that she had intellectually believed for quite some time had happened.)

There is no doubt -- or very little doubt -- that memory degrades over time. And I think few reasonable people would disagree that memories often degrade severely, or even vanish, over a period of decades -- and this is true even of memories of events that are important to the person who has them. Thus, the argument in favor of generally barring litigation about very old claims is a strong one. (Exceptions might be made, I would suppose, for situations in which it could be shown that the strength of the evidence does not depend on human memory. The advisability of this sort of exception, in any event, might be worth studying.) Perhaps the main obstacle to the argument against the elimination of legal rules that bar claims dependent on decades-old memories is the fact that in most or all states there are no limitations periods for murder charges. But it's not self-evident that this fact proves, or even strongly suggests, that the elimination of limitations on the bringing of other kinds of charges or claims is the prudent and just thing to do.

I am aware that by making the comments I make here I am in some danger of being put in unsavory company; I am aware that some observers will think that Tillers sympathizes with sexual predators. In response I say this: Not so long ago -- in the mid-1980s onwards and in the early 1990s -- legions of people were criminally prosecuted for allegedly abusing large numbers of children in child care facilities. Despite the inherent implausibility of many of the events and criminal acts that were said to have transpired in such cases ("mass child-care abuse cases," they might be called), many people so accused were convicted, even when they had very good lawyers. Yet only a decade later almost all of those convictions were overturned (at least in those cases in which the defendants had insisted on trials and had refused to plead guilty), and it is now almost universally conceded that almost all of those defendants were improperly convicted and were innocent. I fear that the burning desire to obtain redress for victims of sexual abuse and to wreak vengeance on sexual predators will once again victimize many innocent defendants. The experience with the child care cases of the 1980s and 1990s suggests that my fear is not unfounded. Excessive zeal in the pursuit of a good cause is not a virtue; it is in fact dangerous.