Boston Globe on Shanley

Irish Echo online (Feb. 15, 2005):

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.

Columnist in NYTimes Criticizes Roman Catholic Hierarchy for Reining in Paul R. Shanley

'"Michael Stephen'' (pseudonym), On Homosexual Priests, NYTimes, Section A, Page 23, Column 5, Editorial Desk (Late edition, Aug. 18, 1980):

''Hate the sin and tolerate the sinner'' best expresses the Roman Catholic Church's attitude toward homosexuals. Characteristically, ecclesiastical actions and thinking are not only behind the times but also against the tide. While the last several years have witnessed progress in accepting homosexuality in the arts, news media, psychiatry and publishing, and in accepting homosexuals' legal and public rights, the church has reversed the few hopeful signs that compassion might displace discrimination.

The 1975 Vatican ''Declaration on Sexual Ethics'' continued to classify homosexual behavior between individuals as sinful. (The church's position is that the condition of homosexuality is not sinful, that only homosexual acts are.) ... Humberto Cardinal Medeiros, the Archbishop of Boston, transferred to a quiet suburban parish the Rev. Paul R. Shanley, a priest who pioneered an effective ministry to homosexuals. ... These and other, unpublicized actions indicate the extreme homophobic attitudes harbored by the church's hierarchy, seminary faculty and many clergy despite the possibly sizeable number of homosexual clergymen, practicing and latent, in the church.

Did the Trial Judge Pull His Punches? Do You Believe in Unbelievable Stories? Are Show Trials Back?

Shanley was sentenced to 12-15 years imprisonment -- rather than to imprisonment for life.

Did the trial judge pull his punches -- because he did not feel certain enough that Shanley's recovered-memory accuser was telling the truth?

Will the Commonwealth of Massachusetts keep Shanley alive -- will it prevent other inmates from killing Shanley? (Do you care?)

Do you believe that someone can, for a decade or two, completely forget having been molested over a period of years and then, one day -- poof! -- recover that memory? Let's have a thoroughly unscientific poll below.

Shanley's accuser wept in the courtroom. Shanley did not weep in the courtroom.

I will have to go back into the archives to see what the Boston Globe thought (and wrote) in the 1970s and 1980s about Shanley and Shanley's advocacy of man-child love. I wonder what the Boston Globe would have done and said then had Cardinal Law barred Shanley from practicing his priestly duties. (I think Cardinal Law may have assumed his office only after Shanley began his activities as a kind of "street priest." Details, details! But I will have to look into this -- if I have time.)

Waves of fashion afflict us. It was not so long ago when some serious "reformers" advocated sexual liberty for minors without interference from "retrograde" parents. (Today such advocacy is dead but the sexual practices sometimes formerly advocated by some grownups have perhaps nevertheless taken firm root in some quarters.)

Forgive the touch of cynicism in these comments. Over the years the Boston Globe has had few good things to say about the American Catholic Church. (I am not a Roman Catholic.) But the Boston Globe had to tread carefully -- because its sexual politics were not anti-gay. So the Boston Globe's emphasis has been on predatory priests, rather than on predatory homosexual priests. But is it the case that sexual predation is limited to Catholic homosexual predation -- by Catholic clergy? Has Elmer Gantry vanished from the earth? Are some heterosexual sexual predators to be found in the ranks of the Protestant clergy -- even, possibly, among Unitarian-Universalists? Or are people such as Unitarians and Unitarian clergy incapable of sexual predation? Or just more clever in concealing it?

The Boston Globe is a liberal newspaper but it is, above all, a Protestant -- or non-Catholic -- newspaper. Do you think it is appropriate for such a newspaper (or any newspaper) to campaign for the abolition of celibacy in the Roman Catholic Church? Is that a matter that perhaps should be left to Catholics? (As it happens, most lay Catholics are apparently not in favor of the celibacy rule. But should the Boston Globe add fuel to this fire?)

I'm not sure I'm asking all of the right questions. And I'm not sure that all of the assumptions reflected in these comments are true. But I am sure of one thing: the trial of Shanley was much more than a trial of a single alleged sexual predator. The thoughts and sentiments flowing over and through the community in which Shanley was tried were complex and powerful. How will future generations look back on the trial of Shanley? Will they say that justice was at last done? Or will they wonder if the jurors came to believe a highly implausible story of forgotten sexual horrors and were moved to convict by powerful emotions that they were ill-equipped to understand and combat?

I have often thought and said that Hollywood's portraits of famous or notorious criminal trials in the first half of the twentieth century are implausible caricatures of how trials and juries work today. But the pictures that Hollywood painted of some trials in the past -- of, say, race trials in the South in the 1930s -- are perhaps not completely implausible accounts of the machinery of criminal justice in a "modern" and "liberal" community that is determined to stamp out the sexual evil and predation that it thinks clearly resides, on a large scale, in its midst. In such an environment can jurors be expected to use the common sense and sense of fairness that they normally display? I wonder.

P.S. The swarms of reporters that those old Hollywood films depicted as being in the courtroom no longer exist. Well, that's not quite right. Those swarms of reporters still exist. After multiplying they have moved outside -- immediately outside -- of the courtrooms in which "trials of the century" are taking place today.

Do we have show trials today in America?

Yes?

No?

I wonder:

In what sense can it be said that we in America do not have show trials today?

Shanley Convicted

The BBC just reported that ex-priest Shanley was convicted. My prediction was wrong.

Repressed Memory: A Bad Memory or a Recurring Nightmare?

There is reason to think that the ex-priest Shanley molested one or more children somewhere sometime.

There is also good reason to think that the claim of Shanley's principal accuser in the current criminal case that he, the accuser, recovered memories of abuse that had been lost to him for up to twenty years is bogus.

For some details about this case and trial see Joanna Weiss, Shanley Case Goes to the Jury, boston.com news (Feb. 4, 2005).

The avenging angels of the Commonwealth of Massachusetts seem to have learned little from the ill-begotten repressed memory prosecutions of the 1980s. Perhaps the jury in the Shanley case will have more common sense. (I'm betting that the jury will acquit.)

Massachusetts, you folks may recall, is the state that allowed a woman to sue her cousin for molestation that allegedly took place 47 years before. See Time and Justice in Massachusetts

Investigation, Bad Faith & Due Process

Illinois v. Fisher, 540 U.S. 544, 549, at 549 n. * (2004)(Stevens, J., concurring):

* Youngblood's focus on the subjective motivation of the police represents a break with our usual understanding that the presence or absence of constitutional error in suppression of evidence cases depends on the character of the evidence, not the character of the person who withholds it. United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Since Youngblood was decided, a number of state courts have held as a matter of state constitutional law that the loss or destruction of evidence critical to the defense does violate due process, even in the absence of bad faith. As the Connecticut Supreme Court has explained, "[f]airness dictates that when a person's liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant received due process of law." State v. Morales, 232 Conn. 707, 723, 657 A.2d 585, 593 (1995). See also State v. Ferguson, 2 S.W.3d 912, 916-917 (Tenn. 1999); State v. Osakalumi, 194 W. Va. 758, 765-767, 461 S.E.2d 504, 511-512 (1995); State v. Delisle, 162 Vt. 293, 309, 648 A.2d 632, 642 (1994); Ex parte Gingo, 605 So.2d 1237, 1241 (Ala. 1992); Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496, 497 (1991); State v. Matafeo, 71 Haw. 183, 186-187, 787 P.2d 671, 673 (1990); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); Thorne v. Department of Public Safety, 774 P.2d 1326, 1330, n. 9 (Alaska 1989).

Fairness, Reliability (Accuracy) & Due Process

Tennessee v. Ferguson, 2 S.W.3d 912, 914 n. 3 (Tenn. 1999):

"Fundamental fairness" is a concept which, by necessity, defies exact definition. As a general rule, however, a trial lacks fundamental fairness where there are errors which call into question the reliability of the outcome.

Rational Investigation; Fair Investigation; Due Process

You are an American trial lawyer or a police detective. You believe that Vila Victim is dead. You have five hypotheses -- H-1, H-2, H-3, H-4, and H-5 -- about how her death might have happened. Hypotheses H-3 and H-5, though quite different from another, involve wrongdoing by David Darling. Conjectures H-1, H-2, and H-4 do not involve any wrongdoing by David Darling. If you are a trial lawyer, David Darling is your client; and if you are instead a police detective, David Darling is on of your suspects in the possibly-criminal death of Victim. But whether you are a trial lawyer or whether you are a police detective, given the evidence known to you, you believe that the probabilities of conjectures H-1 through H-5 are roughly as follows:

P(H-1) = .1
P(H-2) = .05
P(H-3) = .4
P(H-4) = .2
P(H-5) = .05

Question 1. If you are a rational trial lawyer or police detective, which of your five conjectures should you investigate?

Question 1A. If you are a rational trial lawyer or detective, does it follow that it is irrational for you to investigate hypothesis H-2? On what assumptions?

Question 2. If David Darling was convicted of killing David Darling and police detectives investigated only hypothesis H-3, have Darling's due process rights been violated?

Cf. Arizona v. Youngblood, 488 U.S. 51 (1988).

Note: Larry Youngblood was released in the year 2000 -- after new technology -- a new type of DNA test -- convincingly demonstrated that Youngblood had not in fact committed the child molestation crimes for which he was convicted. See Barbara Whitaker, DNA Frees Inmate Years after Justices Rejected Plea, New York Times, August 11, 2000, Friday, Late Edition - Final, Section A; Page 12; Column 1; National Desk. Larry Youngblood spent roughly 17 years in prison for crimes that he very probably did not commit.

Gripping Story about Repressed Memory

See http://williamcalvin.com/2002/OrangeCtyRegister.htm. Be sure to read the last sentence.

Precision and Imprecision: Uncertainty, Probability & Proof

Aristotle, Nichomachean Ethics (trans. W.D. Ross, revised J. Urmson; Princeton U. Press, 1984) 1094b lines 24-27:

[I]t is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits: it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician demonstrative proofs.

Notes:

1. The quoted language may be a bit jarring [in postmodernist jargon: "orthogonal"; in German: "quer"] to participants in contemporary debates about the relationship between probability and (forensic) proof. But, of course, Aristotle's world is different from ours and "probability" in the quoted statement (above) does not mean what it means today.

2. Despite Aristotle's insistence that in certain realms rough or imprecise reasoning is the best that we can do, can we agree that Aristotle was trying to describe precisely how rough reasoning about certain matters works? [Can we speak precisely about imprecise reasoning?]

3. Are Zadeh and Pawlak modern-day Aristotelians?

A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit

Two Lawyers and a Judge Shape a Lawsuit

The Role of Decision Makers' Epistemic States (Inferences) & Speech Acts in the Formation of an Episode of a Legal Process such as Litigation

The Difficulty of Pretrial or Prelitigation Investigation and Planning

Question: Why is the investigation of and planning for a possible lawsuit and trial more difficult than planning and preparation in the somewhat-but-not-precisely comparable settings & situations mentioned (see below) by David B. Leake in Artificial Intelligence?

In real-world situations, it is seldom possible to generate a complete plan in advance and then execute it without changes. The state of the world may be imperfectly-known, the effects of actions may be uncertain, the world may change while the plan is being generated or executed, and the plan may require the coordination of multiple cooperating agents, or counterplanning to neutralize the interference of agents with opposing goals. Determining the state of the world and guiding action requires the ability to gather information about the world, though sensors such as sonar or cameras, and to interpret that information to draw conclusions (See MACHINE VISION). In addition, carrying out actions in a messy and changing world may require rapid responses to important events (e.g., for a robot-guided vehicle to correct a skid), or an ongoing process of rapidly selecting actions based on the current context (for example, when a basketball player must avoid an opponent). Such problems have led to research on reactive planning, as well as on how to integrate reactive methods with the deliberative methods providing long-term guidance (See ROBOTICS). The RoboCup Federation sponsors an annual series of competitions between robot soccer teams as a testbed for demonstrating new methods and extending the state of the art in robotics (www.robocup.org).

Wishes, Horses, and Group-to-Individual Inference

Take a gander at this -- if you wish: If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes

The 72-witness rule

James Franklin reports (at pp. 13-14 in his book The Science of Conjecture: Evidence and Probability before Pascal (2001)) that the False Decretals, a mish-mash of things compiled ca. 850 A.D., contain a passage asserting that a "bishop should not be condemned except with seventy-two witnesses." About this and some similar rules for defendants of lesser stature Franklin writes:

It is the world's first quantitative theory of probability. Which shows why being quantitative about probability is not necessarily a good thing.

Evidence and Discretion in Booker

I have not yet studied the opinions in Booker v. United States, 2005 LEXIS 628 (Jan. 12, 2005), but based on the holding in Booker as I now understand it (i.e., before actually reading the opinions), I already know that this Evidence person will have one nagging question in his brain as he tries to decipher Booker.

Although Booker arguably strikes a blow for liberty (see my post of January 12, 2005), second-hand accounts (and my quick skim of small portions) of Booker suggest that Court embraced a proposition that strikes me as extraordinarily odd:

A trial judge violates the constitution (the Sixth Amendment right to trial by jury) if she enhances the sentence of a criminal defendant beyond the normal statutory maximum if a jury has not found that the evidence presented to it shows beyond a reasonable doubt that the factor or factors justifying such enhancement do in fact exist; but a trial judge can impose a harsher than normal sentence (i.e., enhance a sentence beyond the normal statutory maximum) without jury adjudication of the existence or nonexistence of factors that the trial judge believes warrant the imposition of a harsher than normal sentence -- as long as the trial judge is not required by a legislative command to impose a harsher than normal sentence under specified circumstances.

If this is the Court's conclusion, the conclusion is odd. Does the Court's conclusion rest on the proposition that evidence is immaterial if a trial judge (or the judiciary) is free to decide which circumstances warrant the imposition of a harsher than normal sentence? Why should the decision to enhance a sentence be free from the constitutional requirement of proof beyond a reasonable doubt merely because the trial judge (or the judiciary) is left with the freedom to decide which circumstances warrant a harsher than normal sentence? Does the Court's position rest on the fallacy that evidence is immaterial if decision involves discretion? See P. Tillers, The Value of Evidence in Law (1988).

A Coalition for Liberty?

Federal Sentencing Rules Are Wrongly Applied, Court Rules by The Associated Press in NYTimes Online (January 12, 2005):

The high court's vote to require more jury participation was 5-4 and included the same odd right-left combination of justices as those who had held sway in June. Justices Antonin Scalia and Clarence Thomas are the court's most conservative members. Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg are in the liberal wing.

Refreshing! -- on a number of counts.

Footnote: Perhaps the UK will reconsider its current skepticism about the value of lay participation in ajudication?

How Long Did the Typical English Criminal Trial before the Lawyers Last?

In a recent book review, "Though the Heavens May Fall'" and "Bury the Chains": Freed, NYTimes Sunday Book Review (Jan. 9, 2005), Marilynne Robinson wrote:

More insight into the actual operations of the law would have been useful -- some discussion, for example, of the yawning gulf between the principle of the right to trial and the fact that in early-19th-century England, an average felony trial lasted less than nine minutes, sometimes ending so quickly that the accused did not know he had been tried.

Does someone in cyberland have documentation for this point, please? I am interested in the point because I am skeptical of the praises that Prof. John Langbein sings for the English criminal trial before lawyers began representing defendants in felony cases.

Thank you!

Evidence Exam: Try Your Hand?

Question

Peter Plaintiff is a prison inmate. Della Defendant is a prison guard. Peter brings a civil action against Della in the State of Blackacre. The action is for assault and sexual assault. The first count of Peter’s complaint avers that at 2:00 a.m. on June 1, 2002, Della shot Peter in the leg with a revolver as he lay sleeping on his bed in his cell. The second count of the complaint avers that Della climbed into bed with Peter after shooting him and attempted to have sexual intercourse with him. Della’s responsive pleading to the complaint contains an answer and a counterclaim. The answer avers that Della shot Peter to ward off Peter’s attempt to rape her. The counterclaim states a claim against Peter for assault.

The case proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At the trial Peter testifies that Della assaulted and sexually assaulted him in the manner described in the complaint. On cross-examination Peter states, “I have never belonged to a gang.”

Della’s counsel then offers to have Buddy Cellman testify that he (Buddy) and Peter were cellmates and that on September 1, 2004, Peter said to him:

You know, I belong to Prison Misprision. That’s a prison gang. It’s got a chapter right here in our joint. It’s got chapters in lots of joints. Prison Misprision has got lots of mumbo-jumbo. When people are initiated into Misprision, they swear to maim prison guards and rape women. That’s done in candlelight. That’s the way it’s done in all of the gang’s chapters. Buddy, you should consider joining Misprision. If you don’t join a gang, the guards will get you even if your fellow inmates don’t. I know what I’m talking about. In this joint ya gotta get your enemies before they get you.

Peter’s counsel objects to this proposed testimony.

Judge Wisdom responds, “We need to adjourn the trial for a day so that I can consider the admissibility of Mr. Cellman’s testimony.” Judge Wisdom then 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 Buddy’s testimony about his conversation with Peter is admissible or inadmissible. Consider and evaluate all plausible objections to Buddy’s testimony. Hit the books!”

Write the memorandum and submit it within 24 hours.