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.