Botvinnik to Go?

I recently bought a book that I greatly enjoyed when I was a callow youth: M.M. Botvinnik, One Hundred Selected [Chess] Games (trans. Stephen Garry, Dover ed. 1960).

This English translation was originally published in 1951 by MacGibbon & Kee.

Clarification 1: Well, I guess I didn't buy the same book, exactly. How should I put it? Should I have said, "I bought another copy of Botvinnik's book." But this is all so tedious. I will let the IP people worry about such things.

Clarification 2: I am no longer a callow youth. Now I am instead a callow adult.

Several months ago I vowed finally to learn the game of Go. (The board and pieces, elegant though they are, lie largely unmoved and unused on my dining room table.) Getting the Botvinnik book more recently -- just a few days ago -- moved me to wonder if he would have been a masterful Go player. Botvinnik was probably the greatest positional player that the game of chess has ever seen -- or, in any event, Botvinnik's mastery of pawn structures was astonishing: he built elaborate pawn forts and then moved them, move by move.

Weird Life

Space scientists are now urging a search for weird life, weird forms of life. See NYTimes (July 7, 2007).

I must be an advanced scientist: I found weird life here on earth long ago.

N.B. Perhaps scientists also misspoke when they said they were hard on the heels of a theory of everything. (This claim raises the William-Clinton-like question: What is "everything"?)

Relevance and Causality

What is the relationship between causal relations among events (or causal explanations or hypotheses) and the relevance of evidence? I have been wrestling with this question for a long time. I have found an excellent book that sheds much light on this question. See James Woodward, Making Things Happen (Oxford University Press 2003).

Woodward has useful comments about Nancy Cartwright's intriguing skeptical attitude toward causal explanations. See, e.g., Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge University Press 1999) and her more recent book (which I have not yet read) Hunting Causes and Using Them: Approaches in Philosophy and Economics (Cambridge University Press 2007).

Woodward professes to be an admirer of Judea Pearl -- and Woodward's approach in some particulars does follow Pearl's. But Woodward (I am pleased to say) emphasizes more than Pearl has (I think) that rational relevance judgments are possible (and common) even in the absence of anything that might resemble a full-blown theory (or even a half-baked theory) of causal connections in a particular situation.

James Woodward uses nice examples (mostly from the sciences) to illustrate his points.

Amazon.com's "book description" of Cartwright's 2007 collection of papers (see citation above) suggests that Cartwright uses her latest book to make a counterattack against critics such as Woodward:

Hunting Causes and Using Them argues that causation is not one thing, as commonly assumed, but many. There is a huge variety of causal relations, each with different characterizing features, different methods for discovery and different uses to which it can be put. In this collection of new and previously published essays, Nancy Cartwright provides a critical survey of philosophical and economic literature on causality, with a special focus on the currently fashionable Bayes-nets and invariance methods – and it exposes a huge gap in that literature. Almost every account treats either exclusively how to hunt causes or how to use them. But where is the bridge between? It’s no good knowing how to warrant a causal claim if we don’t know what we can do with that claim once we have it. This book will interest philosophers, economists and social scientists.

Fourth Amendment and History

Professor Thomas Y. Davies has also convincingly demonstrated that the U.S. Supreme Court's Fourth Amendment jurisprudence during the last 100 years has little to do with Framing Era historical realities. See Thomas Y. Davies, Recovering the Original Fourth Amendment

This raises a question. Will the Court give up:

1. Bad legal history.

2. Legal History.

3. Subscriptions to journals with good legal history.

N.B. If Professor Davies has his history right in the main (and I strongly suspect he does), the Court's current Fourth Amendment jurisprudence cannot be defended on the ground that it comports with, if not the letter, then the spirit of the Framers' view of the purposes of the Fourth Amendment; the Court has instead poured new wine into new bottles.

Professor Davies Continues His Assault on the Historical Foundations of Crawford's Redefinition of the Constitutional Right of Confrontation

See Thomas Y. Davies, Not the Framers' Design: How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis Testimonial Formulation of the Scope of the Original Confrontation Clause, 15 Brooklyn Journal of Law and Policy -- (2007).

The author's SSRN abstract of the paper states:

In opinions for the Court in Crawford v. Washington (2004) and Davis v. Washington (2006), Justice Scalia asserted that the Framers' design for regulating hearsay evidence under the Sixth Amendment Confrontation Clause was limited to testimonial out-of-court statements, but that the Framers did not intend the Clause to apply to less formal nontestimonial hearsay statements at all.

This article documents that this claim is merely another instance of fictional originalism. It begins by pointing out that although Justice Scalia endorsed construing the confrontation right according to those [hearsay] exceptions established at the time of the founding, he did not actually survey the framing-era authorities regarding the treatment of criminal hearsay.

The article then examines the treatment of hearsay in the framing-era treatises and justice of the peace manuals used in framing-era America and documents that hearsay was defined to include all unsworn out-of-court statements. It also documents that only two forms of out-of-court statements could be admitted as evidence of a defendant's guilt: the the written record of a sworn Marian witness examination of a person who died prior to trial (which was not hearsay) and the dying declaration of a murder victim (which was hearsay). The article also identifies two other limited-purpose hearsay exceptions that did not permit hearsay to be used as direct proof of a defendant's guilt: one allowed hearsay to corroborate a witness's trial testimony and the other allowed hearsay to prove the general existence of a conspiracy (but not the defendant's involvement). Otherwise, the article concludes that hearsay statements, including those that could be deemed nontestimonial under Crawford, were banned by framing-era criminal evidence doctrine.

The article also documents that, contrary to statements in Crawford, the confrontation right was understood to require the exclusion of hearsay statements at the time of the framing. Thus, contrary to Justice Scalia's analysis, the Framers understood that the ban against criminal hearsay was a component of the confrontation right. In sum, the testimonial/nontestimonial hearsay distinction announced in Crawford and Davis contavenes [sic] the settled evidentiary principles that shaped the original meaning of the Confrontation Clause.

Professor Davies is a formidable legal historian. It will be interesting to see how the Supreme Court responds to his challenge.

N.B. I need to review Davies' papers to see how he thinks Confrontation Era courts dealt with certain kinds of out-of-court statements. For example: a witness proposes to testify that the accused murderer, as he stabbed the alleged victim, shouted, "May you burn in Hades!" Perhaps Davies takes the view that Framing Era judges (like modern judges) would not have characterized such statements as hearsay and that they therefore would not even have considered excluding evidence of out-of-court statements such as these? (Under modern law, even if such a statement -- e.g., "Die, you scum!" -- were considered hearsay, it would fall under the exemption or exception for party-admissions).

New Paper on Neuro-Imaging and Credibility

I see that Charles Keckler has published an article on the use of neural imaging to assess witness credibility. See Charles Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings Law Journal No. 3 (2006). The author's SSRN abstract of this paper states:

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.

I have not yet read this paper. However, it should be noted in general (i.e., without any intention on my part to cast any aspersions on the quality of this particular paper, which I have not read) veracity is not synonymous with credibility; a variety of variables other than veracity vel non can affect the credibility of a witness. For example: poor memory, poor sensory capacities (e.g., poor eyesight, poor hearing), non-objective (but "honest") interpretation of sensory signals (i.e., "bias" and "interest"), and situational limitations on the ability of a witness to perceive (i.e., in legal parlance, defects in "personal knowledge" -- e.g., given the witness' distance from the event she reports, whether or not the witness was in a position to see "what happened"). As generations of both trial lawyers and psychologists (and writers of fiction -- think Shakespeare -- and other students of human behavior) know, these variables are far from insignificant.

&&&

&&&

A Modest Claim for $54,000,000

If you lose your pants, you may want to seek $54 million in damages rather than $67 million. But even if you can show that the dry cleaners made you lose your pants, you may lose your case -- even if you make such a modest claim for damages. See Washington Dry Cleaner Wins in $54 Million Pants Suit, Bloomberg Online June 25, 2007).

Even though plaintiff -- an administrative law judge -- lost, perhaps he should be admired for believing everything that his law teachers taught him. (Now, let's see, where did that guy go to law school?)

How did plaintiff think he was damaged to the tune of $54 million by the absence of his pants? (I trust plaintiff sought to mitigate damages by buying a replacement pair of pants rather than by ... etc.)

Plaintiff claimed that the dry cleaners lost his pants in May of 2005. Plaintiff invoked a consumer protection act (providing for treble damages, recovery of attorney's fees, and similar matters) and he "sought $1,500 for every day that Custom Cleaners displayed the 'Satisfaction Guaranteed' sign during a four-year period, multiplied by the three defendants. He also sought $15,000 to rent a car to take his clothes to another cleaner for 10 years." DC judge loses $54 mln lawsuit against cleaners, Reuters (June 25, 2007).

But the lawsuit and the trial were not, of course, about the money; they were about principle. Plaintiff explained "he would keep $2.5 million for himself and use the remainder of the award to encourage others to file similar lawsuits." Id.

Do you suppose that this was an enforceable promise? Do you think plaintiff would have kept it? Are you interested in buying the Brooklyn Bridge -- at a very reasonable price?

Problems of Evidence Are Everywhere -- Even in (or Especially in) Current Debates about the Rationality or Irrationality of Religious Belief

Stanley Fish has written a perceptive essay that copyright law prevents me from reproducing here: Atheism and Evidence (June 17, 2007) in TimesSelect.

My quick read of Fish's essay leads me to believe that I do not disagree with a word of his essay.

I can say this much: Stanley Fish does not think that the case for the non-existence of God or the irrationality of religious faith has yet been made by the likes of Sam Harris, Richard Dawkins, and Christoper Hitchens. (I think one might add to this list: Daniel Dennett, the late Carl Sagan, and the late Stephen Jay Gould. These are men whose faith in the non-existence of God and the irrationality of religious belief knows no bounds.)

Of course, the relationship between evidence and religious faith is not really a new question. For example, the emergence of modern probability theory was accompanied and spurred by rival arguments about the probative value of the miracles reported in the Bible. (Even if the debates now seem curious, it should be noticed that from the standpoint of the problem of uncertain inference, some interesting points were made during these debates.)

In the closing paragraph of his essay Fish states:

Despite what some commentators assumed, I [Stanley Fish] am not taking a position on the issues raised by the three books; readers of this and the previous column have learned nothing about my own religious views, or even if I have any.

Fish is a thoroughly liberal fellow -- in the good old-fashioned sense of the word "liberal."

Richard Rorty

See the touching tributes to Richard Rorty in Slate (June 18, 2007).

The Duke Prosecution, and On the Mantra "Believe the [Alleged] Victim [in Sexual Assault Cases]"

David Feige, One-Off Offing, Why you won't see a disbarment like Mike Nifong's again, Slate (June 18, 2007):

Mike Nifong [the former prosecutor in Durham North Carolina] did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution. Indeed, they'd be vilified if they did. The cardinal rule of sexual assault complaints is "believe the victim," and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn't just the case in Durham; it's true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he'd have been lionized for his dogged pursuit of rich white kids.

Putin's Crimes

A slew of critics of Putin's regime have been murdered or have died under suspicious circumstances. Is it possible that Mr. Putin, that ex-KGB agent, is really turning Russia back into a police state? Is it probable? These thoughts came to mind when I heard an interview today with the authors of Death of a Dissident: The Poisoning of Alexander Litvinenko and the Return of the KGB (Free Press, May 22, 2007). (The authors are Alex Goldfarb and Marina Litvinenko.)

That Putin favors the restoration of a monument to Dzerzhinsky in Moscow is not exactly reassuring. (This is the same Dzerzhinsky who led the secret service that interrogated and killed the real-life protagonist portrayed in Arthur Koestler's Darkness at Noon.)

N.B. At one point Putin favored the erection of a new statue of Josef Stalin. A proposal for such a statute in Moscow led Eugene Volokh to ask if we might soon expect to see statues of Adolf Hitler in Berlin.

What Is a Victory for Liberty and Due Process?

If a man is found to have been illegally imprisoned, without due process of law, and is released (or deported) after six or more years, is this a victory for the principle of liberty and due process? Would such a victory be more meaningful -- more "real" -- if it took place during the "war" on terror, perhaps even during its initial phases, rather than, say, six years after such a "war" begins, perhaps even only after such a war ends? Can we be proud of a judicial system that vindicates the fundamental principle of no deprivation of liberty without due process of law (notice of charges, trial, jury, right to counsel, right to submit evidence, right to challenge adverse evidence, all of that) only years after such deprivations take place? Compare Al-Marri v. Wright, 2007 U.S. App. LEXIS 13642 (4th Cir. June 11, 2007). See also Adam Liptak, Judges Say U.S. Can’t Hold Man as ‘Combatant’, NYTimes Online (June 12, 2007).

N.B. Mr. Al-Marri is not yet a free man. He may now be tried in a "civilian" (regular) court. He may be deported. The Fourth Circuit may grant a rehearing and reverse after en banc deliberation. The government may seek review in the Supreme Court. There are other possibilities.

If a court ever issues a final non-appealable judicial order for the immediate release of Mr. Al-Marr, will the goverment refuse to comply with the order? What then?

Plants May Not Malinger, But They Do Prevaricate

David Livingstone Smith, Natural-Born Liars, Scientific American (online) (June 2005)

If [the] bald truth [that human beings systematically lie, that lying gives liars advantages, that "our primary aim is still to look out for ourselves above all," and that "lying to ourselves--a talent built into our brains--helps us accept our fraudulent behavior"] makes any one of us feel uncomfortable, we can take some solace in knowing we are not the only species to exploit the lie. Plants and animals communicate with one another by sounds, ritualistic displays, colors, airborne chemicals and other methods, and biologists once naively assumed that the sole function of these communication systems was to transmit accurate information. But the more we have learned, the more obvious it has become that nonhuman species put a lot of effort into sending inaccurate messages. 

The mirror orchid, for example, displays beautiful blue blossoms that are dead ringers for female wasps. The flower also manufactures a chemical cocktail that simulates the pheromones released by females to attract mates. These visual and olfactory cues keep hapless male wasps on the flower long enough to ensure that a hefty load of pollen is clinging to their bodies by the time they fly off to try their luck with another orchid in disguise. Of course, the orchid does not "intend" to deceive the wasp. Its fakery is built into its physical design, because over the course of history plants that had this capability were more readily able to pass on their genes than those that did not. ...

This account of the pervasiveness of lying -- or, in any event, of deception -- in the organic order is strong enough to warm the cockles of the hearts (and fan the anxieties) of people who believe in Original Sin. Indeed, this scientific account goes beyond the Bible -- since this account sees darkness (in the form of deception) in the very fiber (so to speak) of plant life as well as in the hearts (or in the genes, in any event) of human beings and non-human animals.

But my dog really loves me! She can't just be pretending, can she? Say it isn't so, Sam [or Jane]!)

N.B. In reality I do not own a dog. I have learned my lesson. (But is it better to have lied and lost than never to have lied at all? This is a deep philosophical and moral question that I will address on some other occasion.)

By the way [BTW], what is a "cockle"? Do hearts really have cockles? Does anyone know?

Playing with Loaded Dice

At Las Vegas casinos and racetracks if you make more bad bets than good bets, you generally (but not invariably) lose more money than you win. But this rule of thumb may not apply in the game of American litigation. Consider Jeffrey Anderson, who has reportedly made millions of dollars bringing lawsuits against Catholic clergy for sexual abuse. Anderson, Esq., brags (confesses?), "'I'm the losingest lawyer you've ever interviewed. I've lost a lot more than I've won, and people only read about the stunning victories.'" Terry Carter, Collaring the Clergy, 93 ABA Journal 38, 41 (June 2007). How is this possible? Is it because Anderson has had a lucky streak, recovering such vast amounts in some isolated cases that the winnings greatly outweigh the losses? Or is Anderson a rich man today because he is fortunate enough to work within a litigation system in which neither he nor his clients pay for the full costs of the bad litigation bets -- and the unjustified harms they have inflicted on opponents?

Oh well: Justice at any price! Ya gotta break some eggs to make an omellette? Isn't that right?

P.S. The article reports that Anderson, Esq., flew into a rage on learning that an accused priest had counterclaimed for defamation. Id. at 39. This strikes me as mildly ironic. In any event, would Anderson's rage persist if it turns that his client's accusations against the priest are false? Or, al la the mantra of the 1980s (largely popularized by Oprah Winfrey, about the need to "believe the children," some of whom turned out to be unworthy of belief), is it the case that the following mandate applies: Believe the (alleged?) victim!

Telltale Prints

Richard Gray, Fingerprints Tell A Story, London Sunday Telegraph, reprinted in the Washington Times (June 9, 2007):

LONDON -- For more than a century, fingerprints have helped to bring criminals to justice. Now, in a development that should help police catch more crooks, scientists have discovered how to coax details of an offender's lifestyle and health from the prints he or she leaves at a crime scene.
The technique will prove particularly valuable when officers are unable to find a match for a fingerprint on the national database. Currently, if no match is found, the print is useless until a suspect is brought in for questioning.
The new technique will reveal whether an offender smokes, takes drugs, drinks coffee, is using a certain type of medication or has a specific disease. This will help to narrow down the list of potential suspects, saving time and money for the police and securing more convictions.

Read the rest of the story online!

Time Lines and Probabilities in German Courtrooms

In a controversial case in Germany a court of the first instance acquitted a man (Alfred B.) charged with committing a bank robbery. The evidence against the man included (forgive the following attempt at a translation of the article from Der Spiegel (May 21, 2007):

Alfred B. is arrested on the basis of statements made by the only two eyetwitnesses, and indications of guilt surface immediately: The police discover 14,970 Euros in the rear panel of an old refrigerator [at Alfred B.'s residence]. {Furthermore,] Alred B. had 10,000 Euros [in his possession] on the day of the crime, and a day later [a day after the day of the crime] he deposited 4,970 Euros in [a bank in a neighboring village]. Taken together, therefore, [Alfred B. had] almost as much as the approximately 33,500 Euros that were taken during the robbery. In addition, there were fourteen 500 Euro notes in the money found in Alfred B's possession. [At the behest of the perpetrator] the bank clerk put fifteen such notes in sacks during the robbery.

The two surviving eyewitnesses to the robbery identified Alfred B. as the perpetrator.

Furthermore, according to expert witnesses (the robber shot two people at the bank that he robbed), the perpetrator used a "Walther PP, caliber 7.65 cm." Alfred B. was the owner of precisely the same model revolver (which, however, he reported was stolen years earlier).

So why was Alfred B. acquitted?

One problem, it appears, was with the reported sequence of events (id.):

One of the principal witnesses, the farmer Bauer B., has an ironclad belief that he saw Alfred B. to the east of the scene of the crime at the time of th crime.

A higher-instance court reversed the lower court's acquittal and ordered a new trial.

What is the moral of this (unfinished) story?

The attorney for the family of one of the victims said this:

The big error in the [lower court's] opinion is that indications of guilt were hacked away [by the court] because doubts remained. But one must consider the larger picture: The probability that there was a doppelgaenger with such a gun, with similar rubber boots, and with almost exactly the same amount of money is close to zero."

My thanks to Prof. Lothar Philipps for alerting me to this case.

Dogs Threaten To Invade the Province of the German Judiciary: Olfactory and Dog Tracking Evidence in Germany

The editors of Der Spiegel plainly do not approve of "dog-tracking evidence." See The Scent of Terror, Spiegel Online International (English) (May 23, 2007).

But there is more to this story.

First, I note that Professor Andrew Taslitz's views of dog-tracking evidence have caught the attention of our friends(?) in Germany (id.):

Even in the US, where the rule of law is currently being dismantled in the war on terror, there are qualms about trusting dogs to search for the truth. "Does the Cold Nose Know?" is the title of a critical study by the US academic lawyer Andrew Taslitz, who is demanding that man's four-legged friends be banned from the courtroom altogether.

Second, Der Spiegel notes an interesting experiment that has the air of a parlor trick:

... [T]here has never been an internationally recognized scientific study that proves dogs' infallibility when it comes to odor identification.

Nevertheless, German investigators rely on a strictly defined scent identification procedure, one that has been put to the test thousands of times. Six tubes are placed on a podium, including the sample belonging to the suspect. The dog has to sniff an object that has been handled by someone other than the suspect and then has to find their sample.

In the final test, six samples are laid out, but not the one from the first test. Now the dog has to sniff the real evidence, maybe a tool used for a break in. If three dogs come up with the same results in the preliminary and main tests, then the failure rate is one in every 1.2 million. That at least is what a researcher at the University of Paderborn has calculated.

Sunny, Skip and Zoey have noses that seem to be infallible. The samples are mixed up and even the dog handler doesn't know which one is which.

Third, a West German defense attorney fears that dogs will invade the province of the judiciary and leave us with K-9s in judicial robes:

Hamburg defense lawyer Gerhard Strate, who has been researching the use of olfactory proof, also finds it hard to believe in the infallibility of animals. "Then we could just replace the judges with dogs wagging their tails."

Fourth, Der Spiegel, ever alert to the prospect of 1984 or of a reversion to the Stasi-State notes that the evidentiary uses of olfactory material may be in their infancy (the subtitle of the Spiegel article is "STASI METHODS USED TO TRACK G8 OPPONENTS"):

US scientists are currently working on digitally upgrading the controversial dog tests, so that the scents could also be used in the war on terror. The Pentagon is financing research at Darpa -- Defense Advanced Research Projects Agency -- to develop a detector that can pick up the scent of foreign combatants.

The researchers in Philadelphia have already discovered that scent is inseparable from the genetic fingerprint and in particular the immune system. "Every person has their own unique, individual smell," says Gary Beauchamp, the director of the Monell Chemical Senses Center, who is working on the Darpa project.

People carry so much information in their scent it would make every data protector's hair stand on end. Beauchamp is convinced that it should be possible to "recognize how old someone is, what their gender is, and what illnesses they have."

Evidence Examination Spring Semester 2007

Evidence Spring Term 2007 Prof. Peter Tillers

Instructions

This examination has one question.

This is an "open book" "take home" examination.

You have 24 hours to prepare and submit an answer.

You are free to consult any written material of any kind, including library materials, LEXIS, and WESTLAW. [further exam instructions omitted]

Problem

Vila Victim was stabbed to death on June 1, 2006.

Sam Sidekick was also stabbed during the attack on Vila. However, Sidekick did not die on June 1, 2006. Sidekick died in a hospice on September 1, 2006.

The State of Blackacre indicts Albert Accused for the murder of Vila Victim on June 1, 2006. Accused pleads not guilty.

The case against Accused proceeds to trial. The presiding judge is Judge Obscure Wisdom. You are Wisdom’s law clerk. Your name is Diligent Clerk.

The prosecution’s theory is that (i) Albert Accused tried to rape Vila Victim while Sam Sidekick held Victim from behind, (ii) Victim resisted the attempted rape, (iii) Victim’s resistance enraged Accused, Accused pulled a knife out of his pocket, and Accused began stabbing Victim, (iv) Victim fought furiously to fend off the knife attack, and (v) during the ensuing struggle between Vila Victim and Albert Accused, Accused inadvertently stabbed Sidekick as well as Victim.

The defense theory is that Albert Accused stabbed Sam Sidekick to prevent Sidekick from raping Vila Victim and that Accused accidentally stabbed Victim while trying to prevent Sidekick from raping Victim.

At the trial the prosecution offers to have Caring Caretaker give the following testimony:

I work at Hopeful Hospice. I first saw Sam Sidekick there on June 15, 2006. He was in pretty bad shape. I was assigned to be his main caretaker. Of course, all the people who come to Hopeful Hospice are in a bad way; they’re there precisely because they’re dying. But Sam was in a bad way psychically as well as physically, and something other than the prospect of death was troubling his soul.

I decided to do something about that. I decided to subject Sam to guided visual imagery and guided auditory stimuli. The aim of my therapy is both to clear the mind and calm the soul in preparation for death. No one taught me how to do the sort of therapy I do. I’m an autodidact; I taught myself. I got the idea of doing what I do by reading about guided imagery on the web and in books. But no one taught me how to do the sort of therapy I do. My therapy is unique. As I said before, my job is to keep patients comfortable and to bring them peace of mind in any way I can. I can’t tell you why or how my therapy works. All I know is that it works. I know this from trial and error. I’ve used it on many patients, and many patients have come to feel better spiritually as a result. I know that this is so because I’ve seen it happen with my own eyes.

I did my thing with Sam over a period of weeks. For a long time the therapy didn’t seem to work; for the most part Sam just mumbled and jumbled, and he generally spoke in incoherent phrases. If he said anything at all, he said only that he didn’t remember a thing. But then it worked; something clicked. One day – it was August 31, 2006 – after I showed Sam a series of images and had him listen to a series of soothing sounds, Sam went into a trance. It was a deep trance. It was a frenzied trance; he was semi-conscious but excited. That’s precisely the state I seek to induce by the regimen of guided visual imagery and guided auditory stimuli that I use. My regimen has almost always worked in the past. I think it worked this time as well. When Sam came out of the trance, he was lucid and coherent. He told me that his mind was clear, that his soul was at peace, and that he remembered every last detail in his life. And he thanked me.

The very next day – September 1 – two police officers came by. They said they were investigating a case and they wanted to interview Sam. I told them they were free to try. We went to Sam’s room. They set up a digital video disk recorder; they said they wanted to record their interview. They then proceeded to ask Sam questions about someone they called "Albert Accused" and someone else they called "Vila Victim." They asked Sam all kinds of questions. But Sam just rolled around in the bed and moaned. After about ten minutes, they turned to me and said, "Can you get him to talk? We can’t get anything out of him." I told them I could make no promises but that I could subject him to some guided imagery and stimuli to see what if anything would happen. So I did my shtick.

When I do my sort of therapy, I use all kinds of images and sounds. In Sam’s case, I usually used the sound of rippling water and religious imagery such as pictures of St. Francis of Assisi. This time I played the sound of a running waterfall and I showed Sam an image of Joan of Arc, one in which Joan is shown being burned at the stake. This had an immediate effect. Sam seemed to go into a frenzied trance. He rolled back and forth and he moaned loudly. He then shouted, "Albert, did you get her in the chest? But you didn’t mean to stab Vila in the head, did you?" This was all recorded on the videodisk that the police made with their digital recorder.

But things ended badly. Immediately after Sam blurted out his odd question about Albert and Vila, Sam rolled over and went into cardiac arrest. I shouldn’t have agreed to help the cops; I realized that even then. But I made no effort to revive Sam or to get medical help. After all, Sam was at a hospice, not a hospital. It was my job to keep Sam comfortable, not to keep him alive. A few hours later Sam died. It was all very sad.

Albert Accused’s counsel states, "Your Honor, I object to this testimony. Caretaker’s testimony is clearly hearsay. Furthermore, …" Before defense counsel can say anything more, Judge Wisdom interrupts by stating, "Counsel, I don’t want to hear anything more. I’m going to adjourn the trial so that I can consider the admissibility of Caretaker’s testimony." 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 Caring Caretaker’s testimony or any part of it is admissible or inadmissible. Consider and evaluate all plausible objections to Caretaker’s testimony. But keep your perspective. Focus on the important issues. Don’t discuss every conceivable evidence issue. Moreover, emphasize the nettlesome evidence issues. You’ll have to discuss black letter law, of course. But I don’t need or want an extended lecture on black-letter principles of evidence. I want you to grapple with the hard questions. 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 Caretaker problem without doing some legal research. So get to work.

Write the memorandum and submit it within 24 hours.

Lugovoi, Litvinenko, Polonium, and the Director of Public Prosecutions

Britain Charges Russian [Lugovoi] in Poisoning, New York Times (May 22, 2007) (Associated Press)

I had fingered Lugovoi as one of the prime suspects. See the archived posts for December 03 - 10, 2006. My suspicion became most focused on Lugovoi as a result of the item of evidence mentioned in the 14th comment to the blog post of Friday, December 8, 2006. See also, at the same link, the earlier blog post of December 6, 2006, Bungler-Murder Hypothesis 2.1.

I had suggested that time lines might help sort out the evidence and the possibilties. I see that the New York Times and the AP agree with my sentiment:

Timeline in Poisoning of Ex - KGB Agent, New York Times (May 22, 2007) (AP).

Of course, as Priit Parmakson has pointed out, the New York Times has been enamored of time lines for quite some time. When I teach my course in fact investigation next (in the fall of 2008) I must point this out to my students.

If this case ever results in a public trial -- but, alas, it appears this is unlikely -- students of evidence, inference, and investigation would have great clay to sculpt.

A Difficult Problem: Deciding What To Investigate

Talk to the Newsroom: Investigations Editor Matthew Purdy, New York Times Online (May 14, 2007):

Q. I've always been interested to know how you decide WHAT to investigate? After all, you can't investigate everything — yet many things warrant investigation. I also understand that investigative reporting is an expensive process, taking reporters and editors away from other stories. For some news organization, it seems a luxury/indulgence they can't afford. So what's the calculus, the criteria, at The Times?

— Thomas Hackett

A. Your question is a good one because deciding what to investigate is often the most difficult decision. ...

Exactly! See Assignment No. 1, Assignments Page, Fact Investigation Course (Fall 2006):

I believe it is important for students of investigation to experience the "agony of exploratory investigation" for themselves.

My experience with prior incarnations of this course shows that the process of identifying a suitable investigation topic can be both arduous and time-consuming. Beginnings of any kind are usually hard. The beginnings of investigations are no exception to this rule: in the initial phases of investigation -- phases that are usually exploratory in nature -- everything often seems to be a bloomin' buzzin' confusion.

See also Beginnings Are Hard: Notes on Starting an Investigation