Character, Crime & Prescience

It's a good thing I'm not in the crime prediction business.

I was looking through some old photographs last night when I found a signed photograph of a high school classmate. He was in my chemistry, physics, and English classes. He was likable. And he was brilliant.

His name was Edward Jackson. He was among the cadre of slide rule toters. Slide rules were all the rage -- Kessler was the preferred brand -- before electronic calculators came along.

Edward was in some fancy company. For example, one of our classmates went on to make a sterling career in astrophysics.

After I found Edward Jackson's photograph, a wave of nostalgia seized me. After graduating from high school, I had left Columbus, Ohio, and I had returned to Columbus only rarely. Consequently, I had lost touch with childhood friends. Last night I again felt a bit sad about this.

I decided to GOOGLE Jackson. I didn't think I'd find anything. But, I thought, why not?

I did find something almost immediately. I found an August 24, 1983, New York Times article entitled:

Ohio Rape Defendant Was Esteemed as Physician

And there was this in the body of the article:

A year ago, Dr. Edward Franklin Jackson Jr. was a Columbus internist and hospital board member who had the respect of his peers and a successful practice.

On Tuesday, Dr. Jackson's lawyer said that for seven years, the physician also planned a series of rapes. He called Dr. Jackson ''a person who acted compulsively, obsessively, over and over again.''

Dr. Jackson, who was arrested Sept. 5, 1982, in the apartment of two Columbus women, described himself as ''two people, a responsible citizen during the day and an assaulter at night.'' He was charged with raping 38 women and committing 60 other felonies.

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If convicted of all 60 charges, which include 22 rapes, Dr. Jackson could be sentenced to 1,380 years in prison.

As a student at Columbus North High School in the class of 1961, the defendant was remembered as a brilliant student, ''very friendly and curious and anxious to please,'' a chemistry teacher, Jim Anderson, said. The student rushed through Ohio State, earning a degree in anatomy in 1964.

In 1965 he met Alice Carolyn Hansen, who became his wife. They have two daughters. He finished his medical degree at Ohio State in 1968 and began his residency at a Columbus hospital. It was then that Dr. Jackson was arrested near the university and charged with possession of burglary tools. ... The case was dropped, but the hospital told Dr. Jackson to leave. He Served in the Army.

When Dr. Jackson returned to Columbus, he joined the staffs of Mount Carmel and St. Anthony and volunteered his services at a community health center. By 1978 he had become a member of the St. Anthony board of trustees and an officer in the Berwick Civic Association.

The story then takes a twist. Another Black man -- whose surname was also Jackson -- was convicted and imprisoned for several of the rapes that Edward Jackson Committed. It was a case of mistaken eyewitness identification:

Meanwhile, the police were baffled by a series of assaults on women that began in 1975.

William Bernard Jackson, who resembles the physician in appearance, was convicted of the rapes and sentenced to 14 to 50 years in prison. It was nearly five years before the police arrested Dr. Edward Jackson, realized their mistake and released William Jackson.

A bit of further investigation revealed that Edward Jackson was convicted. A September 10, 2002, story by Mike Harden in the Columbus Dispatch -- "Rapist's Victim Ends Anonymity to Fight Parole" -- stated:

The physician, whose Jekyll-and-Hyde insanity plea didn't wash with the courts, was found guilty of 36 rapes and 52 related felonies, and sentenced to 282 to 985 years.

The 58-year-old Jackson, who entered prison 19 years ago this month, bides his time in the Southeastern Correctional Institution in Lancaster.

Other newspaper articles reveal that Edward Jackson kept meticulous records -- on 3" x 5" cards -- about his rape victims. A story (August 23, 1983) in the Columbus Dispatch -- "Mass rape suspect goes to trial" by Rosemary Armao -- relates:

Dr. Edward Franklin Jackson Jr. -- an internist, Columbus civic leader and the father of two teenage girls -- pleaded innocent and innocent by reason of insanity to 96 counts of rape, aggravated burglary, sexual imposition and kidnapping.

Authorities suspect there are even more crimes, dating back to 1975, but are prosecuting only in cases where the women are willing to testify. At last report, about 100 witnesses, including more than 40 victims, were willing to travel the 130 miles to Akron.

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Police found Dr. Jackson Sept. 5, 1982, while investigating a report of a prowler in an apartment where the women occupants were on vacation. With him they allegedly found a black ski mask, knotted rope and a flashlight.

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In the doctor's Mercedes, police found a list of 65 women's names with dates next to them.

''He was always so nice and polite -- not flashy or loud or elaborate,'' said a long-time neighbor of the doctor after the arrest. Indeed, his patients continued to see him while he awaited trial, free on $335,000 bond.

I confess I am shaken and baffled - at a personal level.

The academic side of me is also unnerved. Some years ago I published a paper in which I opined that parents generally make pretty good guesses about the behavior of their children. I thought I knew Edward Franklin Jackson well. But that he would become a serial rapist -- well, of that I had no inkling whatever.

People are strange. Are they also almost completely unpredictable?

Sorting Out YourThoughts about a Case (or a Possible Case)

Here is a device -- part of a system -- for sorting out, or organizing, your thoughts about a case or possible case:

Loose Thoughts Stack (Windows)

Loose Thoughts Stack (Mac OSX)

This stack -- "Loose Thoughts" -- is one element of the experimental software MarshalPlan 2.1.

Stay tuned for further developments.

Japan's Minister of Justice on Trial by Jury and Capital Punishment

David McNeill, Justice Minister talks in death-penalty riddles, Japan Times Online (Jan. 27, 2008):

In an interview in Weekly Asahi [Justice Minister Kunio Hatoyama] called the jury system "an imitation of foreign countries," and added, "I believe it is being enacted in Japan because it is being done overseas. I think it will be great if the system works well, and that it should be re-evaluated."

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[In another interview Justice Minister said:]

As the Japanese place so much importance on the value of life, it is thought that one should pay with one's own life for taking the life of another. You see, the Western nations are civilizations based on power and war. So, conversely, things are moving against the death penalty. This is an important point to understand. The so-called civilizations of power and war are the opposite of us. From incipient stages, their conception of the value of life is weaker than the Japanese. Therefore, they are moving toward abolition of the death penalty.

It is important that this discourse on civilizations be understood.

All clear?

Legal Transplants from Abroad in Japan; Police Treatment in Japan of Criminal Suspects in Custody

David McNeill, Citizens routinely denied legal rights, Japan Times Online (Feb. 2, 2008):

[Constitutional] safeguards [of the rights of criminal suspects] are interpreted by Japanese courts in a way that makes them virtually meaningless.

The provisions were drafted by the postwar Allied Occupation, with the goal of creating an "adversary system of justice" along American lines: Investigating and gathering evidence should be separated from considering evidence and deciding a case; judges should be removed from the investigating function; and prosecution and defense must enjoy equal opportunity to present evidence.

This reform was a radical change from the prewar system in which prosecutor and judge were not clearly separated, and defendants were seen more as part of an inquisitorial process than a neutral rehearsal of evidence and fact.

Says [Lawrence] Repeta [Omiya Law School Professor]: "Many observers agree that what we have today bears a closer resemblance to the prewar system than the adversary system envisioned by the drafters of the Constitution. Judges question witnesses aggressively when they wish, and prosecutors play a dominant role, with defense lawyers typically in a minor role in trials."

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So who will protect the suspect [in criminal cases in Japan]? Well, in Japan it will be the police, according to new interrogation rules issued this week in the wake of the Kagoshima and Toyama cases. From April, detectives will be explicitly forbidden from striking, shaking or even touching someone in custody, or from using words "likely to embarrass or make a suspect feel uneasy," harming their dignity or promising lighter treatment in return for a confession.

The new guidelines suggest that the impact of jury trials is already being felt: The police are "mindful," says state broadcaster NHK, that juries who mistrust the police could undermine trials. But the monitoring will be internal, and the police are still refusing to cede a key demand from the Japan Federation of Bar Associations: The videotaping of interrogations.

"There is no change in a system where insiders check other insiders," Hokkaido University Professor Yuji Shiratori told Kyodo News on Friday.

Rap Music Lyrics as Evidence of Guilt in Criminal Trials

See Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Columbia Journal of Law and the Arts 1 (2007).

The article has some delicious, or appalling, quotations from training manuals for prosecutors. (Training manuals for trial lawyers display the law's equivalent of the relationship between lawmaking and meat processing.)

The use of rap lyrics as evidence in criminal trials is fertile soil for the cultivation of devilishly-difficult (and interesting) essay exam questions. Students, you are hereby forewarned.

Time and Evidence

Time is involved in a number of important and separate ways in fact investigation, evidential argument, and evidence assessment in legal settings (and probably in many other kinds of settings):

1. Time and Fact (a/k/a Evidential) Investigation

A. The history of an investigation (including investigative paths not taken as well as those taken)
B. Guesses or predictions about the discovery of evidence through future action

2. Time and Events at Issue

A. The (possible) sequence of events at issue in time
B. The causal nexus between events at issue in time

3. Time and Sources of Evidence

A. The (possible) sequence of events pertaining to states of sources of evidence (such as "human sources," human beings)
B. The causes of changes over time in the states of sources of evidence

4. Time and Deliberation

A. The order of receipt of evidence by (or submission of evidence to) the fact finder or decision maker
B. The sequence of deliberation by the trier of fact or decision maker

5. Time and Mind (a/k/a Judgment)

A. Changes in the trier's or decision maker's recollections, sentiments, and similar matters that affect evidential assessment
B. Temporal causes of such changes in the mind or judgment of the trier or decision maker

A system to facilitate or support fact investigation, evidential argument, and evidence assessment should be sensitive to these various perspectives on evidence, to these various ways of organizing evidence and thinking about evidence. I pledge that future iterations of MarshalPlan will (eventually) incorporate (all of) these various ways of marshaling evidence and thinking about evidence.

Perfume Sniffing and Wine Tasting -- and Expertise

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) Justice Breyer spoke of a hypothetical "perfume tester [who, Breyer intimated, might be] able to distinguish among 140 odors at a sniff."

On the Leonard Lopate show on WNYC radio, on January 23, 2008, a guest described a study that showed that wine testers invariably thought that wines they thought were more expensive tasted better than wines that the tasters thought were less expensive. The WNYC web site summarized the story this way:

A recent study shows that raising the price of wine makes it taste better. When tasting wines they’d been told cost more, testers’ brains showed more pleasure than when drinking cheaper wines…even when the wines were exactly the same! The study’s lead author is California Institute of Technology economics professor Antonio Rangel.

Tim van Gelder's GOOGLE Group "Legal Mapping"

Tim van Gelder has created a new GOOGLE group: Legal Mapping. He describes the purpose of the group this way:

A group for discussing the use of software tools to visualise reasoning in legal contexts, with particular focus on Austhink's attempts to produce a tool adapted for legal use.

Consider joining this discussion group.

Distributed Dynamic Investigation, Inference, and Proof in a Legal Setting

The business of fact investigation, inference, and factual persuasion and demonstration in a legal context is convoluted enough. See A Theory of Preliminary Fact Investigation.

Matters get more convoluted when the business of investigation, inference, persuasion, and demonstration becomes both distributed and dynamic.

So: Imagine that your job is to investigate and assess a collection of evidence -- or, more broadly, to address a possible legal question that raises factual, investigative, and inferential questions -- and imagine that you are a supervising analyst, investigator, or decision maker whose job it is to supervise and coordinate the work of some underlings -- other analysts, investigators, or decision makers.

You might envision part of your task in the way I have depicted it (roughly!) in the standalone Revolution stack META-MANAGER (Windows) or META-MANAGER (Mac OS).

The ingredients of your meta-network -- the pieces of your picture of your (managerial, supervisory) task -- will consist of the networks of your underlings, which may have this structure

or, by rough equivalence, this structure

Now -- to make things worse, to make matters much, much worse (but also more interesting) -- imagine that this quasi-network of quasi-networks is your frame -- your vision of your present and future situation -- in the construct shown below as you sail through time and space (which - i.e., sailing through time - means that evidence changes, preferences change [or become clarified], and judgments [or opinions] about existing evidence change):

How will you -- supervising investigator, meta-manager of fact investigation -- manage all of this? Will you, perhaps, try not to think too much about how you manage to do what you manage to do? Or will you try to pick apart the different pieces of your complex activity? Would you do so if some parts of your inferential and investigative work could be automated?

A Universal Cognitive Illusion -- Or "Your Suitcase Is Not as Small as You Think It Is"

Flash: A Suitcase Serves as a Nifty Form of Demonstrative Evidence.

"Guilty verdicts without a body are rare,"Seattle pi.com (June 29, 2004):

Mark Elby was charged with killing his wife and then putting her body in a suitcase and "throwing it off the 182-foot-high Deception Pass Bridge."

"When defense attorneys in court argued that a woman couldn't fit in a suitcase, the prosecuting team brought a suitcase into the courtroom and had a petite woman curl up inside."

Elby was convicted.

Another Corpus Delicti without a Corpus

See Tom Hays (AP), "Man arrested [in] NY woman's disappearance," nj.com (Jan. 15, 2008)

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Technicalities can not only get you off. Sometimes they can send you to the gallows.

Pocono Record (December 24, 2007):

Q. The police suspect there's been a murder but no body has turned up anywhere. Does this mean they have to give up on the case? A. That's what 1949 London serial killer John George Haigh boasted to police after killing Mrs. Durand-Deacon, saying he had dissolved her remains in acid so the victim no longer existed, says E.J. Wagner in "The Science of Sherlock Holmes."

"You will find the sludge which remains on Leopold Road. But," he smiled confidently, "you can't prove murder without a body."

Haigh was mistaken on this point, as many others have been. The law does not require a corpse but rather a "corpus delicti," or "the body of evidence that establishes the crime has taken place." Not understanding this, Haigh made a full confession of the killing, plus five others, claiming he was a vampire in dire need of their blood. The police pegged his motive as going after the women's valuables. When experts examined the sludge, they spotted small polished pebbles that turned out to be gallstones of the late Mrs. Durand-Deacon. Also found were her dentures, bone fragments and part of a handbag. Later, the jury wasted no time in finding Haigh guilty and sentencing him to death.

John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof

On January 5, 2008, the Evidence Section of the Association of American Law Schools awarded two now-legendary men -- William L. Twining and Judge Jack B. Weinstein -- the inaugural John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof.

I had the honor of introducing Professor Twining. Professor Margaret Berger introduced Judge Weinstein.

I made the following comments about Professor Twining:

Twenty two years ago Richard Lempert wrote that evidence scholarship was “moribund” when he began teaching in 1969. Having administered that slap at the Evidence professoriate of his day, Lempert added a passage that is redolent of Goethe’s Faust’s complaint about dessicated and life-sapping scholarship. Lempert wrote that although the federal codification movement had begun to breathe new life into the field of evidence, law review articles about evidence generally followed "the model 'What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem.'" These articles, Lempert said, "were seldom interesting and if they had potential utility it was rarely realized, for the federal rules remain today largely as they were when enacted. The work was, in short, a timid kind of deconstructionism with no overarching critical theory to give it life."

Lempert’s claim that Evidence was on death’s door in 1969 or 1970 was an exaggeration. Judge Weinstein was doing important work in Evidence in the late 1960s. So too were professors such as John Kaplan and Vaughn Ball. Moreover, James H. Chadbourn’s painstaking preparatory work in the 1960s on the forthcoming California Evidence Code was nothing to sneer at.

Still, Lempert’s characterization of evidence scholarship circa 1970 was, in the main, on target.

But things that start badly sometimes turn out well.

In the 1970s and 1980s fresh faces emerged who changed the face of evidence scholarship here and elsewhere in the world. Among the innovators were Richard Lempert himself, David Kaye, Judge Jack Weinstein, and, of course, William Twining.

Twining cannot be given sole credit for the broadening and the deepening of evidence scholarship that we have witnessed during the last three-and-one-half decades.

But of course no single person can take sole credit for the flowering of evidence scholarship during the last 30-35 years.

Be that as it may, Twining has been an important player in the transformation of evidence scholarship.

Furthermore, Twining has made distinctive contributions to evidence scholarship, and his contributions have put a special imprint on this still-mutating field, an imprint that will be felt, I think, for decades to come.
Before I say just a few words about just a very small sample of Twining’s many distinctive contributions, I want to make two general points about Twining’s influence.

First, America is not the world. Twining’s influence on the development of evidence scholarship in the rest of the world probably exceeds any other individual’s. As many of you know, Twining is now known for his work on globalization. But even in the field of evidence, Twining is a scholar with a truly global reach.

Second, Twining is Evidence’s Mao Tse-Tung. He, more than anyone else, has taken steps to institutionalize the evidence revolution – he has worked to establish programs and communities in order to ensure that scholarship about evidence will continue to deepen, broaden, and evolve, if not forever, then at least for quite a while to come.

For example, not only has Twining been working at this evidence business for a very long time, and not only does he have legions of former students & admiring ex-colleagues all over the world, he is also one of the prime movers behind the sprawling, interdisciplinary, and exciting research program and community at University College London that goes by the name Enquiry, Evidence, and Facts. (If all goes well, this program and this community will continue in some form at UCL.)

Now I want to say just a few words about just three of Twining’s many contributions to evidence scholarship. I must use broad brush strokes; I cannot go into detail. This is an introduction rather than a eulogy, and I have only five minutes to speak.

If I have his personal history right, Twining did not begin his teaching career in the UK. But he was in the UK when he began his work on evidence and proof in earnest.

Academics tend to be somewhat isolated from the real world.

This was certainly true of legal academics in the UK in the 1960s and 70s, which is when Twining came of age as a law teacher: at that time the vast majority of UK law teachers had little or no experience in law practice. (The practice of law was a different career path.)

Furthermore, in those days law teachers in the UK, even (or particularly) law teachers (dons) at Oxford and Cambridge, were generally an intellectually insular lot: they generally had little interest in any academic field other than law.

As I see it, Twining meant to send his unrealistic and parochial academic colleagues in the UK three messages.

Two of those messages are particularly germane in today’s America, now that American law teachers are becoming increasingly divorced from law practice – two of Twining’s three messages amount to shots across the bow of people who are entering law teaching today.

The three messages are these:

1. Getting the facts right is very difficult.
2. Evidence and facts are a very big part of law.
3. Factual inference and proof drip with logic and with theory.

1. The difficulty of getting the facts right.

Attempts to get the facts right face at least two big difficulties.

First, subjectivity and prejudice threaten the very core of the enterprise of fact finding.
Second, getting the facts right is an arduous and time-consuming enterprise – facts are not reeled in like fish in a well-stocked pond – because

(a) getting the facts right requires attention to evidentiary details, large masses of evidence; and
(b) drawing sound conclusions from masses of evidence requires the development of multiple multistage arguments.

Twining has taught that it is important that budding lawyers and judges study this painstaking and time-consuming process.

Twining taught that it is possible to teach budding lawyers and judges useful things about the process of inference and proof – that although assessment of evidence is at least as much art as science – in his view, more art than science – there is reason to think that law teachers can teach their students something useful and important about the arduous and difficult activity of factual inference and factual proof.

But Twining makes it clear that no student should be left with the notion that there is somewhere a magic bullet – a rote or mechanical procedure that can guarantee that any dummy or slouch can get the facts right without doing a heckuva a lot of work. Twining teaches and preaches that exactly the opposite is the case: sound inference generally requires good judgment and a heckuva a lot of work.

He also teaches that even when lawyers, judges, and fact finders work conscientiously and hard, there is no guarantee of infallibility about facts. Twining believes that an additional reason for getting law students to study evidence, inference, and proof is to get them to understand the many ways in which inference and proof can go wrong.

2. Evidence and facts are an important part of law.

Lawyers do many things. Two of the many things they do is (i) gather and assess legal materials (i.e., “legal research and analysis”) and (ii) gather and assess evidence.
Twining, who is something of a legal realist, had to remind UK law teachers that practicing lawyers do more of the latter than of the former.

Most of you [Evidence teachers] don’t need to be reminded of this.
But some of the people who are entering law teaching today need to be reminded of this.
Perhaps the U.S. Supreme Court also needs to be reminded of this. (The Court is not overflowing with people who have seen law practice first-hand.)

3. Twining’s third general message has to do with the relationship between evidence & theory.

One of Twining’s original motivations for studying evidence was jurisprudential: he wanted to develop a better understanding of law by getting a better understanding of factual proof in law.

The structure of factual inference and proof should be important to many people other than students of factual inference and proof in law.

The nature of argument about evidence should interest to students of the nature of argument about legal rules and principles.

For one thing, arguments about legal principles may spring from facts about the world. For another thing, even legal argument and legal interpretation may be, to an important extent, an effort to infer how things actually stand in the world.

The nature of factual inference in law should interest also philosophers in general – because epistemology is central to philosophizing about human society and the human condition, and the workings of factual inference in law shed light on problems of epistemology.

Evidence theorists need to become a bit more imperialistic: they need to tell or remind other legal theorists that theories about law cannot get along if those theories are bereft of arguments about the nature and structure of inference and proof. You – you down-to-earth evidence theorists – must teach those fancy-pants legal theorists that they can’t and won’t go far unless they too learn to take evidence, inference, and facts very seriously indeed.

This is one of William Twining’s most important lessons.

I give you William Twining.



THE END

An expanded version of the above introduction will be published in the Seton Hall Law Review. The expanded version has note material. You can get the expanded introduction here.

Prospective Law Clerk, Test Your Mettle (or Your Legal Acumen or ... Whatever)

Peter Plaintiff brings a civil action for damages against David Defendant in a court of the State of Blackacre. The complaint avers that Defendant was Plaintiff’s landlord and that Defendant unlawfully evicted Plaintiff from the apartment that Plaintiff had leased from Defendant. In his answer Defendant denies that he evicted Plaintiff. Defendant avers, in the alternative, that he had good cause to evict Plaintiff and terminate the apartment lease.

This civil action – Peter Plaintiff versus David Defendant – proceeds to trial. The presiding judge is Judge Bolix Wisdom. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

In her opening statement Plaintiff’s counsel asserts that the evidence at the trial will show that a bomb destroyed the bathroom in Plaintiff’s apartment six months before the expiration of Plaintiff’s lease and that Plaintiff, not having a bathroom, decided to move out of the apartment. Plaintiff’s counsel further states that the evidence at the trial will show that Defendant arranged for the bomb explosion that destroyed the bathroom in the apartment and that Defendant did this vile deed because he wanted to be rid of Plaintiff because Defendant had found a prospective tenant who was willing to pay vastly more rent for the apartment than Plaintiff was obligated to pay.

Defendant’s counsel tells a very different story in his opening statement. Although he agrees that a bomb destroyed the bathroom in the leased apartment, Defendant’s counsel states that the evidence at the trial will show that the bomb explosion in the apartment was caused, not by Defendant, but by Plaintiff. Defendant’s counsel adds that the evidence will show that Plaintiff built the bomb that destroyed the bathroom in the apartment.

Peter Plaintiff is the first witness. On direct examination he gives testimony that tends to support his claim that David Defendant arranged for the bomb explosion in the apartment. At the conclusion of the direct examination of Plaintiff , Defendant’s counsel asks for a bench conference and then states:

Your Honor, we believe Plaintiff was and is a member of the Sao Paolo Branch for Political and Religious Liberation, or – as it is commonly known – SPBPRL. We believe that SPBPRL was and is a neo-Maoist political and military movement, a movement whose founding was inspired, oddly enough, by South America’s Catholic Liberation Theology. SPBPRL was and is dedicated to the elimination of capitalism and the destruction of all property. We believe that a chapter of SPBPRL – a chapter consisting of Peter Plaintiff and two other people – held weekly meetings in Plaintiff’s apartment to plot the destruction of capitalism and property in Blackacre. We believe that Plaintiff and his cohorts built and exploded the bomb in the bathroom of his apartment in an effort to eliminate capitalism and destroy property in Blackacre. During our cross-examination of Plaintiff, we will ask Plaintiff to confirm these points. If he denies any of them, your Honor, we propose to call his former roommate and collaborator Rabid Rouser, who has personal knowledge of all the matters I have just mentioned. I should add, your Honor, that Plaintiff and Rouser were not merely members of the Blackacre chapter of SPBPRL. They were in fact co-founders of SPBPRL. We will also confirm this point during our cross-examination of Plaintiff or, if need be, through the testimony of Rouser. This is our offer, your Honor, and we ask that you rule that we can proceed in the manner I have just described.

Plaintiff’s counsel states, "Your Honor, this is the most ridiculous story I have ever heard. In any event, all of the testimony and evidence that my esteemed colleague vainly hopes to elicit from Plaintiff and Rouser is inadmissible. And let me tell you why." Before Plaintiff’s counsel can say anything more, Judge Wisdom interrupts her by saying, "No, that’s o.k. I don’t want to hear anything more from you. I’ve got a very bright law clerk. But my sense is that there are some thorny evidence issues here. I’m going to adjourn the trial for a day so that I can consider them diligently." Snickering slightly, Judge Wisdom turns to you and says:

Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if the testimony that defense counsel hopes to elicit from Plaintiff or Rouser – or from both of them – is admissible or inadmissible. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this thorny problem without doing some legal research. So get to work.

Write the memorandum and submit it within 24 hours.

Publication of Special Issue on Visualization of Evidence and Inference

See Table of Contents

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.

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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.