Judging and Misjudging Guilt and Innocence

Adam Liptak has a TimesSelect Column (July 23, 2007) in the NYTimes about a study of how well or badly the US criminal justice system ferrets out and corrects criminal convictions that rest on factual mistakes. The column focuses on a study by Professor Brandon L. Garrett of the University of Virginia School of Law. (The TimesSelect column provides a link to the copyrighted study, which is to be published in the Columbia Law Review.) A forthcoming study by Professors Samuel Gross (University of Michigan) and Barbara O’Brien (Michigan State) is also mentioned, but not discussed at length.

According to Liptak, one conclusion to be extracted from the Garrett study is that "[t]he courts performed miserably in ferreting out the innocent."

To the extent that Garrett's study discusses the rate of wrongful conviction of the innocent -- thus far I have only skimmed Garrett's paper --, Michael Risinger's paper (scroll down in the page to reach the link) should be consulted.

Liptak asserts, in passing, that "rape [is] the classic crime in which DNA can categorically prove innocence." This is a familiar mistake. But sophisticated observers such as Liptak should not make it. DNA cannot "categorically" prove innocence -- anymore than it can "categorically" prove guilt. For example, it is well known (or it should be well known) that (i) the presence of one male's semen in a woman's vagina does not rule out the possibility that another man raped that woman (whether the man who was the source of the semen found in the woman and tested did so or not) and (ii) a laboratory may have tested the wrong semen sample. Is it necessary to recite such possibilities? The fact that in particular circumstances the results of a DNA test may be highly persuasive evidence of innocence does not change the fundamental point: DNA evidence is NEVER conclusive of ANYTHING. Tiresome. And a dangerous misunderstanding.

Liptak notes that Garrett concluded that "[t]he leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time." What are we to make of this statistic? Does it matter how frequently eyewitness identifications resulted in the conviction of the guilty? (I assume Garrett discusses this point. [Let me emphasize that I have not yet carefully scrutinized Garrett's study. So I really am NOT saying or even intimating that Garrett has not discussed the questions I raise here.])

Note: unless one demands absolute factual certainty (which is unattainable under any circumstances), on the basis of the above-quoted statistic alone -- or on the basis of that statistic and the additional statistic that in 1/4 of the wrongful convictions eyewitness identification was the sole evidence --, on the basis of such statistics alone one would not conclude (I would think) (i) that eyewitness identification evidence should be barred or (ii) that eyewitness evidence alone should never suffice for a conviction. (However, further arguments and considerations might justify the latter conclusion -- the conclusion that eyewitness evidence [e.g., of just one eyewitness] should not be suffice for a conviction. [Again, I want to make crystal clear that I am NOT asserting that Garrett does not discuss such issues. I have not yet studied his study.])

I have lightly skimmed SOME parts of the Garrett study. The part of the study I enjoyed most (due, surely, in no small part to my personal theoretical prejudices) is the part in which Garrett stresses the importance of pretrial fact investigation and the substantial resources that are required (including, I would say, the diligence, discipline, and imagination of defense counsel) to conduct effective pretrial fact investigation.

More Papers on Visualization of Evidence and Inference

Additional papers and comments have been posted at Conference Papers and Comments on Graphic and Visual Representations of Evidence and Inference in Legal Settings

Clergy Sex Abuse: Protestant v. Catholic

Was the "clergy sex abuse" scandal predominantly a Roman Catholic phenomenon and was it attributable (as many observers seemed to suggest) to the Catholic rule about the celibacy of the clergy? I don't know the answers to these questions but I have always been suspicious of shoot-from-the-hip affirmative answers.

I recently found this old op-ed about a sex abuse case involving a member of the clergy in the Evangelical Lutheran Church in America:

Carol Marin, Protestant Sex Abuse: A $69 Million Jury Award Chicago Tribune (April 28, 2004):

Think back.

Do you remember reading a story about clerical sexual abuse last Friday?

No?

Think hard. It was a pretty big story.

It involved a Chicago-based denomination of 5 million members that, according to the Associated Press, "has drawn comparisons to the worst abuses committed during the Roman Catholic molestation crisis."

It is a tragically familiar tale. Fourteen male victims. A bishop accused of looking the other way. And a whopping $37 million civil jury award plus a separate out of court settlement of $32 million for a total of $69 million. Still not ring a bell?

Don't blame yourself. This is a church sex-abuse story that got little, if any, real coverage. When the case was decided last week, the national TV networks didn't cover the story. It was not big news on Chicago television stations. Nor was it in the Chicago Tribune or Chicago Sun-Times. Instead, each paper ran the same short account provided by the Associated Press. You could find it on page 16 of the Tribune. Page 44 of the Sun-Times.

This is a story about Protestant sex abuse.

It involves the Evangelical Lutheran Church in America, headquartered on West Higgins Road in Chicago, and a former minister named Gerald Patrick Thomas Jr., who was the pastor of one of the denomination's churches in Marshall, Texas.

Arrested in 2001, Thomas is now in federal prison on child pornography charges. When he is done serving a five-year sentence there, he'll move on to a Texas state penitentiary where he has been sentenced to 397 years for molesting boys.

How is it that in the last few years we have learned so much about predator Catholic priests like the late John Geoghan or Paul Shanley, both of Boston, but so little about Gerald Patrick Thomas Jr. of Texas?

Is there a whiff of anti-Catholicism in the "Catholic clergy sex abuse scandal"?

Personal note: in the spring of 2002 I wrote an investigative team at a prominent American newspaper and asked why the team was not investigating sexual abuse by Protestant clergy. The summary reply I got: sexual abuse by Protestant clergy is not a serious problem.

Some fragmentary information recently came to light about claims of sexual abuse by Protestant clergy. See Rose French, Report: Protestant Church Insurers Handle 260 Sex Abuse Cases a Year Insurance Journal (June 18, 2007)

Stiff Regulatory Law

China official executed for taking bribes, Irish Times (July 10, 2007):

China executed a former drug and food safety chief today for corruption in an unusually swift sentence which will serve as a warning amid a series of health scandals that have stained the "made in China" brand.

The Supreme People's Court approved the death sentence against Zheng Xiaoyu (62) who was convicted of taking bribes worth some 6.5 million yuan (€625,000) from eight companies and dereliction of duty, Xinhua news agency said.

Are Japanese Washing Machines (and Japanese Trains, Cameras, etc.) Fuzzy or Non-Fuzzy?

Joost van Steenis, Mathematical Chip:

In Japan they use a kind of fuzzy logic based on discrete numbers. Washing machines determine with sensors a value that tells something about the amount of dirt. The weight is also measured and a third sensor looks at the colours. Then an algorithm determines how much water and washing powder is needed and what the temperature of the water has to be. These variables are independent from each other and they can be quantified. So you get a washing machine with thousands of programs. This pseudo fuzzy logic is also used in lifts, which on their own accord travel to those floors where most people are waiting. And in cameras to compensate for tremors in the human hand. But this is not real fuzzy logic. The fuzzy situation is split up into very small steps after which discrete values are allotted to the parts. These values can be used in calculations according to the Boolean logic. Boolean logic is by the way a special part of fuzzy logic. It looks fuzzy but it is still discrete. This soft Japanese computing is still computing. Vague concepts are being converted into numbers that can be used in a computer. But our brain works with real fuzzy computing.

Earlier I wondered if it would be possible to bring order and system to fuzzy interactions between fuzzy parts of a proof process. The following comment by Mr. Steenis (id.) sounds both reassuring and discouraging:

So you start with a fuzzy input that leads via fuzzy dependency, fuzzy thinking, fuzzy judgement and fuzzy logic to a fuzzy output. On the basis of a fuzzy complex the brain decides which piece or pawn has to move. And the brain includes in its judgement also fuzzy ideas about such fuzzy facts as the aggressiveness of the opponent. The discrete position on the board gives rise to a fuzzy process that results in a discrete decision: only one move can be executed on the board. For this kind of fuzzy process techniques we do not have any theory. We do not know how we can obtain a fuzzy output from a fuzzy input.

Is Mr. Steenis correct?

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Mr. Steenis shortly grows (pleasingly) philosophical (and whimsical):

When problems get complicated thinking becomes even more difficult and it is even more important to change the way of thinking. It is striking that in conversations most people understand fuzzy concepts fairly well. Words as about, maybe, long, short, nice and agreeable are all fuzzy. In a conversation these words are never described exactly. Even the question what is life is fuzzy. Viruses grow but they can not reproduce. Are they alive? People are alive but when does human life begins? With the first two cells from which later a human will grow? Or is it needed that there are 4, 8, 16, 32, 64, 1024, 8192 or even still more cells before we can call a living entity human? The whole abortion discussion turns around such fuzzy concepts. Fuzzy exists, the consequences are everywhere and it is strange that scientists mostly avoid this reality. In some simple cases they use fuzziness but when problems get more complex fuzzy disappears and all is expressed in absolute values. But in complicated problems precise descriptions become meaningless and meaningful descriptions are not precise. Let humans become a little more chaotic.

Victory

I am happy to report that I won my first fuzzy chess game.

I regret to report that the computer I played was not programmed to look very far ahead.

But I'll take a victory whenever I can get it. (I won't be reporting my losses, if you please.)

It strikes me that in real fuzzy chess, the moves themselves would be fuzzified, and not just the descriptions the players give of the moves they make.

One notable feature: This particular fuzzy chess program allows Mulligans. If a player indicates he, she, or it will move a particular piece, the player remains free to move any other piece in any way that the (normal) rules of chess allow. There is something akilter here: the human player is given an advance opportunity to peer into the mind of the computer. I guess the developer wanted to give human players warm fuzzy feelings about fuzzy chess.

Musings about How One Is To Address the Question, "What Is [Judicial or Juridical] Proof?"

Proof in legal settings such as litigation is a social process or phenomenon.

A social phenomenon has numerous ingredients.

Proof in litigation has numerous ingredients.

Some or many of those numerous ingredients probably have causative force; i.e., some or many of the ingredients or parts of proof influence how proof works.

Some of those causative ingredients have or may have a logic or a conceptual structure.

But, if so, such logics or conceptual forms are sometimes, often, or always fuzzy or rough.

Moreover, the interactions among those frequently-fuzzy logics or forms are themselves sometimes, often, or always fuzzy or rough.

An observer can try to describe the fuzzy or rough logics or conceptual forms that seem to drive or may drive (to some extent) the process of proof in litigation.

An observer can perhaps also try to describe how those fuzzy or rough logics or conceptual forms interact -- or, if you prefer, collide.

There are possible corollaries of the propositions or hypotheses that have been stated or hinted at above. There are also many questions. Perhaps I will deal with such corollaries and questions later. What you see above is very, very abstract. It is also very imprecise in an invidious sense -- i.e., it is a very imprecise, rough, and vague account of an imprecise process. But I am neither a logician nor a mathematician, and I have to start somewhere. I will try to start with simple description (of the ingredients of proof in the United States), if that is possible. Perhaps then my description can be made more systematic -- by other people if not by me. (But whether systematic description of the parts of proof and their interaction is possible remains to be seen.)

I fear that my project is too ambitious.

Stay tuned for further developments.

Fuzzy Chess?

Image Reproduced under GNU Free Documentation License

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Being slated to take part in a discussion of fuzzy logic, soft computing, etc., and law later this summer (in Las Vegas, b'gosh!), I have been having more than my share of fuzzy thoughts recently. Well, no, that's not it. I misspoke. (Forgive me.) I meant to say that I have been thinking, quite precisely (in my usual fashion), more than I usually do about fuzzy features of law.

In any event, having just thought about chess and then having thought (roughly, next) about fuzzy phenomena (for reasons that I may explain momentarily), I thought, "What about fuzzy chess? Would that be possible?"

In today's GOOGLE world no question like this goes unanswered for very long.

GOOGLE reveals that, yes, there is such a thing as fuzzy chess and people already play the game. See, e.g., Fuzzy Chess (Be patient: allow time for the applet with a fuzzy chess board to load.)

Well, waddaya know? Isn't that neat?

The author of "Fuzzy Chess" (id.) states in part:

The [Fuzzy] Chess game play follows the exact same rules as a normal chess game however before each move the player is required to enter a description of this move and the computer will respond by displaying to the player a description of its move. Both these descriptions should be imprecise.

This allows the player to base [her] decision of the actual move [she] will make, at least partly, on the computer's response. The player is using vague information to make [her] decision which is just like how [she] will make decision in real life situations.The rules are pretty simple, before you make any move you will need to enter a description of that move. This description can be as vague as you like - in fact the less specific the better. Once you have entered your description the computer will display a description of the move it may make in response to your move. Now you can actually make your move, this move does not necessary need to match the description you entered. The computer will then make its move based on your actual move. You are white and the computer is black.

The author also has a link that apparently describes the sorts of imprecise move descriptions the computer will accept.

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.

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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?