Is pro bono litigation wasteful? Antisocial? If so, compared to what?

Curmudgeons are often useful: they often make one think. But -- being curmudgeons -- they often oversimplify. I do not know if Judge Dennis Jacobs -- Chief Judge -- of the United States Court of Appeals for the Second Circuit is a curmudgeon; I do not know him personally. But if some reports -- see, e.g., here -- are accurate, it is not unfair to say that he made some curmudgeonly remarks recently.

One of his curmudgeonly complaints -- the least important of his complaints in that vein -- rings true. He seems to complain that people who do pro bono work scratch each others' backs by honoring each other with awards and other such things. (One naturally wonders if Judge Jacobs had some particular honoree in mind.) Of course, this sort of sycophantic and narcissistic group self-promotion is not limited to luminaries in the field of legal pro bono work. One finds the same sort of thing in the law school world. (But one wonders if excessive Kantian or Calvinistic agonizing about the purity of one's motivations might lead to honors not being bestowed when honors are due.) Sycophantic self-admiration is also painfully apparent at events hosted by the White House. Is it possible that social self-preening and group self-advancement even infect the judiciary? (Having made the suggestion, I must rush to withdraw it. Surely judges are beyond all that: surely they care only about the public good -- or the law or ... whatever.)

Judge Jacobs's other complaint is more substantive. He asserts that pro bono litigation is anti-social. Why so? Well, in part because, he argues, the people who control such litigation do not have to bear the adverse consequences of the results of their ostensibly public-spirited activities.

Hmm, ..., well, there's a thought for you.

Caveat: I am relying only a fragmentary account of Judge Jacobs's comments. I have no doubt he also asked whether litigation motivated by profit is more pro-social than pro bono litigation. It might be hard to demonstrate that the motivations of lawyers and clients who not purport to act for the public good are more pro-social than those people who do profess to litigate for the public good. So I assume -- I have to assume -- that in the case of private non-pro-bono litigation Judge Jacobs carefully analyzed and explained why the decision makers - corporate counsel, CEOs, hired legal help, etc. -- do realize that if their litigation activities harm the public good they, these self-interested actors, will personally suffer the socially-harmful consequences of their litigation decisions. (We know that self-interest works in financial markets: greed is good [except, of course, under very special circumstances such as the present financial crisis].)

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The Lowly but Powerful Timeline

A timeline is a simple but powerful device for marshaling evidence for and in litigation and trials. For example, it can be used to depict the possible sequence of events in issue and thereby identify (i) hypothesized events that have little or no evidential support and (ii) possible causal connections between events. It can also be used for other purposes - for example, (iii) to trace the behavior of a witness or prospective witness over time, (iv) to show the order of submission of evidence at trial, and (v) to develop a story-based opening statement or closing argument.

The construction of a timeline, however, is often a laborious process because of (a) the many events that sometimes go into a timeline and (b) the need to revise timelines as events are added. I am happy to report that SmartDraw 2009 makes the business of creating and updating timelines vastly simpler. For example, new events can be added to a timeline with a click of the mouse and -- voila -- the scale of timeline will automatically adjust to accommodate the added event or events. Moreover, SmartDraw 2009 makes it easy to zoom in and out on segments of timelines. The new SmartDraw timeline tool has other useful features. The new timeline tool is a big advance.

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Ye Shall Judge Their Deeds, Not Their Souls -- Justice Cardozo

After students carefully study the American character evidence rule -- a/k/a the propensity rule -- a/k/a the prohibition against "circumstantial" use of character -- they are impressed, and appropriately so -- by the rule's porousness. They are so impressed that some of them incline toward the view -- and understandably so -- that in a garden variety case of robbery or murder, another robbery or murder (respectively) committed by accused at some other time is admissible, without further ado, during the prosecution's case in chief to show the accused's intent for the crime for which he or she is on trial. The logic of the character evidence rule does in fact push toward that conclusion. (The reasoning so pushing involves the acknowledged right of the prosecution to negative a claim of accident or mistake by accused and the fact that intent is an an essential element of crimes such as robbery and murder.) However, if prosecutors were allowed -- without more -- to introduce other murders in a murder case, other robberies... etc., a large hole would be carved out of the heart of the character evidence rule. (Abolishing the character evidence rule might or might not be a good thing. But American law professes to have a character evidence rule.) If you (along with others) find it hard to understand the character evidence rule -- and there is good reason why you should have this difficulty -- you might find it useful to begin by bringing to mind the basic sentiment underlying the character evidence rule, a sentiment that Justice Cardozo (then chief judge of the New York Court of Appeals) eloquently stated 78 years ago in People v. Zackowitz, 254 N.Y. 192 (1930):

At the trial the vital question was the defendant's state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? .... If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant's guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instrument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another's mind, and discover its capacities and disabilities, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the People began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different calibre. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. The District Attorney tells us in his brief that the possession of the weapons characterized the defendant as "a desperate type of criminal," a "person criminally inclined." The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. "Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill." The weapons were not brought by the defendant to the scene of the encounter. They were left in his apartment where they were incapable of harm. In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a "desperate type of criminal," a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the history of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the District Attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one (Wigmore, Evidence, vol. 1, §§ 55, 192). In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide (People v. Druse, 103 N. Y. 655; People v. Rodawald, 177 N. Y. 408; Wigmore, Evidence, vol. 1, §§ 63, 246), but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy (Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N. Y. 103, 109, 110). There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge" (Wigmore, Evidence, vol. 1, § 194, and cases cited).

The workmanlike and non-poetic dissenting opinion, written by Judge Pound, presents the problem of the character rule's porousness practically at the birth of the modern character evidence rule -- and is also perhaps a harbinger of the future of the rule:

The People may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. (People v. Molineux, 168 N. Y. 264; People v. Pettanza, 207 N. Y. 560; People v. Moran, 246 N. Y. 100, 106.) None of them apply here nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. (Commonwealth v. Snell, 189 Mass. 12, 21.) The rule laid down in the Molineux case has never been applied to prevent the People from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was "a part of the history of the case" having a distinct relation to and bearing upon the facts connected with the killing. (People v. Governale, 193 N. Y. 581; People v. Rogers, 192 N. Y. 331; People v. Hill, 198 N. Y. 64; People v. Rodawald, 177 N. Y. 408.)

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Proof

The stock market fell yesterday. This proves we need a government bailout.

The stock market rose today. This proves we need a government bailout.

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Book Publication Announcement

The following book has just been published:

J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (Hart Publishing, 2008).

Details are available here.

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The Philosophy Teacher

Jonathan Mahler, "The Thinker," NYTimes (Sept. 19, 2008):

After class, [Professor Kelly] Jolley and I walked across Auburn’s mostly deserted campus and into town for lunch. It was oppressively hot and humid; Jolley wore a fraying straw boater to keep the sun off his face. Over pizza and iced tea, I asked him if he ever wondered whether his style of teaching might be inappropriate for a large state school like Auburn — if the cost of his approach is that he’s teaching to the few rather than the many. “My view is that you really fall into a trap when you start allowing what you believe about your students to dictate how you teach your discipline,” he answered. “Too often these days we end up setting up our courses in light of what we believe about our students and we end up not teaching them. At best, we end up housebreaking them.”

[snip, snip]

In Jolley’s ideal world, every student would catch the philosophy flame, but he knows this will never happen. He says that philosophy requires a certain rare and innate ability — the ability to step outside yourself and observe your own mind in the act of thinking. In this respect, Jolley recognizes that his detractors have a point when they criticize his approach to teaching. “It’s aristocratic in the sense that any selection based on talent is aristocratic,” he told me. “I know it offends everyone’s sense of democracy, this idea that everyone’s equal, but we all know that’s just not true.”

Perhaps the dispute between Jolley and his critics boils down to how you define great teachers. You typically think about them as being devoted, above all, to their students. Jolley says his first priority is to philosophy itself. “I care about the discipline of philosophy more than the academic fate of any individual student — and I think I should,” he said. “Otherwise I’m just a baby sitter who occasionally breaks into syllogism.”

Jolley's notion that his philosophical endeavors in the classroom ought to be pitched to the best students rather than to average students is perhaps questionable. But his commitment to rigor is admirable. I, any event, admire his courage and his quite-literal idealism.

One has the sense or hope that Prof. Jolley thinks the "best" students are the most inquisitive. And with that thesis it is hard to disagree.

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Expert Handwriting Identification--Is It a Black Art, Is It Junk Science?

Prof. Roger Park of Hastings has published a very thoughtful reply to people (e.g., Prof. D. Michael Risinger) who argue that "forensic document examiners" aren't very good at determining whether two separate signatures were or were not made by the same person. See R. Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008).

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Michael Nguyen: Fuzzy Logic in Patent Law

Michael T. Nguyen recently published a very interesting law journal note proposing the use of fuzzy logic in trials of certain kinds of patent cases. See "The Myth of 'Lucky' Patent Verdicts: Improving the Quality of Appellate Review by Incorporating Fuzzy Logic in Jury Verdicts," 59 Hastings L.J. 1257 (2008). Mr. Nguyen provides a nifty summary of how fuzzy logic can control one kind of process (footnotes omitted):

"Fuzzy logic" is reasoning with fuzzy sets. Bart Kosko refers to the "fuzzy principle" in stating that "everything is a matter of degree." Instead of using the crisp truth values "1" and "0," fuzzy logic uses truth values as fractions from 0 to 1. Thus, the statement "John is tall" can be 66% true, and John would have a membership value of 0.66 in the fuzzy set of tall people. When using these percentages, fuzzy logicians do not imply that probability or chance is involved. It would not make sense to say that John has a 66% chance of being tall or that my lawn has an 89% probability of being green.

To illustrate a fuzzy set further, let us look again at the green lawn example. Few lawns are 100% green. Often, a lawn contains a few brown or yellow patches. Thus, the word "green," in the context of lawns, stands for a fuzzy set of colors that constitute green. "We think in fuzzy sets and we each define our fuzzy boundaries in different ways and with different examples." While the definition of these boundaries may differ from person to person, "the very looseness of the fuzzy set enhances its expressiveness." So, while I may make the statement, "My lawn is green," in reality, my lawn might be 89% green, or may have a membership value of 0.89 in the fuzzy set of green lawns, because of a few yellow and brown spots. Most people round up to 100% as a matter of convenience.

Fuzzy reasoning requires the creation of fuzzy rules in the form of "if-then" statements. The fuzzy "if-then" rules express the relation between fuzzy sets. By combining fuzzy rules, we can create a fuzzy system that automatically converts inputs into outputs. Building a fuzzy system can be done in three steps: first, select the inputs and outputs of the system; second, pick the fuzzy sets; and third, choose the fuzzy rules.

My favorite illustration of a fuzzy system of fuzzy rules is the washing machine example. Suppose we want to construct a machine that ""knows' to wash dirtier clothes for a longer duration than clothes which are relatively clean." The "input is the degree of dirtiness and [the] output is the duration of the wash." The fuzzy inputs would be: almost completely clean, relatively clean, slightly dirty, dirty, and very dirty. The fuzzy outputs would be: rinse, wash lightly, wash, wash thoroughly, and wash vigorously. Finally, we choose the fuzzy rules: (1) if the clothes are almost completely clean, then only rinse them; (2) if the clothes are relatively clean, then they are lightly washed; (3) if the clothes are slightly dirty, then they are washed; (4) if the clothes are dirty, then they are washed thoroughly; (5) if the clothes are very dirty, then they are washed vigorously.

This fuzzy system can be "defuzzified" by attaching specific numbers to the vague concepts. Fuzzy concepts can be defuzzified by averaging or finding the centroid (i.e., center of mass) of the output numbers. Defining dirtiness as a range of particles of dirt from 10 to 100 and duration of the wash from 10 to 100 minutes, we can assign certain values to our fuzzy sets. Thus, the washing machine will literally think for itself and determine how long to wash laundry based on how dirty it is. Such products have been developed in Japan "to raise the machine IQ of camcorders and transmissions and vacuum sweepers and hundreds of other devices and systems."

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Frederick Schauer's Defense of General Rules (Maxims?) about the Epistemic Worth of Categories of Evidence

There is an interesting new paper by Frederick Schauer: "In Defense of Rule-Based Evidence Law - And Rule-Based Epistemology Too".

The thesis is, in general, good: It is epistemologically possible and sound to have (some) general rules about the probative worth of (some) classes of evidence.

Schauer's general thesis is, thus, sensible. But more arguments in favor of his general thesis must be made. For example, one might consider how it would be possible to learn from experience if one could not extract (whether implicitly or explicitly) from experience any general principles about the workings of the world and the relationship of events in the world to phenomena that seem to serve as indicators or signs of events; complete "individuation" of judgments about probative value (a/k/a evidentiary value or force) would seem to bar the possibility of knowledge based on experience.

A separate (and important) question is whether the the particular generalizations that are or may be embedded in the American law of evidence about the probative value (or lack of probative value) of certain categories of evidence (e.g., hearsay) are warranted. The mere fact that there must be some generalizations does not mean that American law has identified the correct ones. Still, the argument made by Schauer is refreshing. It is the beginning of a sensible attack on the ludicrous (so I would say) hypothesis that the probative value of evidence depends entirely on individual circumstances and details.

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How Youths and Drunkards Sometimes Die and How You Can Sometimes Prove It in New Jersey (and Perhaps Elsewhere)

The full text of the following essay is now available (gratis) via SSRN: P. Tillers, "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey."

To retrieve this essay (and story) go here.

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Ho Hock Lai's New Book

A new book on evidence and the law of evidence landed on my desk yesterday (courtesy of amazon.com). A scan of the book's contents suggests the book is worth a very careful read. See Ho Hock Lai, A Philosophy of Evidence Law (Oxford 2008). See the blurb (and more) here.

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Visual Evidence

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The Story of a Signature Crime

I am usually wary of claims that a crime committed with a particular m.o. is a "signature crime." Such claims usually strike me as urban myths or as the products of self-aggrandizing "experts." However, when the Litvinenko business first broke, it struck me (see, e.g., here) that the poisoning and eventual killing of Litvinenko with a highly toxic and barely detectable poison, Polonium 210, was indeed the signature -- the likely hallmark -- of a crime committed by the present-day successors to the KGB. Well, it turns out that my suspicions (and those of many others) were probably correct. See this NYTimes book review by Simon Sebag Montefiore. (How can one doubt the credibility of a person with such a magnificent name?) But, dyed in the wool academic that I am, the interesting part of this story for me is why my notions about how the KGB committed crimes turned out to be correct. Part of the explanation is that the newspaper stories that reported on the Litvinenko business also reported other cases in which the KGB and FSB had supposedly used a similar m.o. But even before I read those relatively recent newspaper accounts I had the impression that the Russian secret police were in the habit of doing their dirty work with furtively-administered poisons. So I was the captive of an urban myth. But it was a myth that turned out to be very probably true. Isn't that interesting?

N.B. Didn't Ian Fleming use furtive poisoning as one of the tactics of his SMERSH in at least one of his James Bond novels?

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Evidence Codification and Non-Codification in Connecticut

Evidence codification has an unusual status in Connecticut. In a case said [in Westlaw's text] to be decided on August 19, 2008 -- in State v. DeJesus --- A.2d ----, 2008 WL 3290164 (2008) -- the Supreme Court of Connecticut writes [will write?]:

"With respect to the defendant's appeal, we conclude that, despite the adoption of the code [of evidence] by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication."

&&&

"We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. at 328, evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, given the highly secretive, aberrant and frequently compulsive nature of sex crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, we adopt this standard as a limited exception to § 4-5(a) of the code, which prohibits the admission of "[e]vidence of other crimes, wrongs or acts of a person ... to prove the bad character or criminal tendencies of that person."

&&&

"The foregoing history [of the adoption of the code of evidence by the judges of Connecticut's Superior Courts] does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication."

&&&

"There was no discussion of the effect, if any, that adoption of the code would have upon this court's common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.

...

"In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law." &&&

In a footnote the Supreme Court dealt with the question whether Connecticut's code of evidence prevents Connecticut's trial judges from changing rules of evidence in case-by-case adjudication:

"FN24. Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1(b) of the code specifically states that '[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.' The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication."

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Questions about the Bruce Ivins Anthrax Case

Dr. Gerry Andrews, a professor of microbiology, raises some interesting questions about the evidence against his former colleague, Dr. Bruce Ivins, the suspected "anthrax killer" who recently committed suicide. See Gerry Andrews, "Open Questions on a Closed Case" (Op-Ed), NYTimes Online (August 9, 2008). Of particular interest to me are several questions that Dr. Andrews raises about the scientific evidence in the case.

The US attorney supervising the investigation and other government agents spoke about the "match" between the anthrax that killed the five victims and the anthrax that had been in Ivins' possession. One government agent -- I believe it was the the US attorney who held the news conference about the impending closing of the case -- even said that the government had located the "murder weapon," the flask containing the lethal anthrax that, it was said, killed the five victims.

Although I have no reason to doubt that the federal government has (finally) fingered the right (dead) man, one must always be suspicious when there is talk about a "match." The word "match" implies evidence that uniquely identifies the thing (or, worse yet) person who left some trace at the crime scene. Dr. Andrews points out several circumstances and considerations that raise questions about the government hypothesis that the scientific evidence in the case points uniquely to Bruce Ivins as the culprit. He makes his point this way:

As a scientist, ... I feel compelled to comment on what should have been the Federal Bureau of Investigation’s strongest link between Dr. Ivins and the terrible crime — deadly anthrax spores. In the summary of its findings, the F.B.I. states that investigators used four different genetic techniques to match the anthrax-laced attack letters to a unique DNA footprint of a single anthrax spore preparation in one flask that had been in Dr. Ivins’s custody.

Sounds reasonable. Yet the investigators present no details on the scientific methods they used to make this match or how they employed them. That’s a problem, because without such detail it is hard to tell if they specifically ruled out a similar match between the anthrax in the letters and anthrax preparations with the same DNA footprint kept at a number of other labs around the country.

For good measure, Dr. Andrews points out how "non-scientific" questions about the custody of the "murder weapon" raise additional doubts about the strength of the scientific evidence against Ivins. Andrews begins by noting that "Dr. Ivins was an investigator in the case before he was a suspect. After the anthrax attack, Dr. Ivins himself worked directly with the evidence. The F.B.I. asked Dr. Ivins to help them with the forensics in the case by analyzing the contents of suspicious letters. And he did so for years, until the authorities began to suspect that the anthrax spores used in the mailings might have originated from his lab." Dr. Andrews argues that the lab at which Ivins worked did not have the capacity to produce the "refined weapons-grade anthrax" that had been used to kill the five victims. Dr. Andrews then adds:

But even leaving that aside, there are important questions left unanswered. First, isn’t it possible that the manipulation of the contents of the anthrax letters in Dr. Ivins’s laboratory might have contaminated the work environment enough to potentially jeopardize the integrity of subsequent samples taken from the lab? Might that perhaps explain why the anthrax powder used in the attacks was later found to have the same DNA footprint as the other anthrax preparations in Dr. Ivins’s lab? At the very least, wouldn’t this call his guilt into doubt?

These are the sorts of questions -- e.g., the degree to which the DNA of the physical sample found at the scene of the crime together with the DNA of a specimen found elsewhere is a distinctive identifier of the physical source of the crime scene specimen, the possibility of contamination of the physical evidence found either at the scene of the crime or elsewhere, the availability of the possible instrumentality of the crime (in this case the "murder weapon") to persons other than a specific suspect, -- these are the sorts of questions that have emerged in innumerable "humdrum" murder and rape cases. Despite the new scientific techniques that are said to have been developed during the investigation of the anthrax case, these sorts of issues are pertinent in the Ivins anthrax case as well in humdrum murder and rape cases. We should avoid being unduly dazzled by novel scientific methods or technology. We must always keep in mind what sorts of questions a powerful scientific method can answer and what sorts of questions it cannot answer.

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Truly Demonstrative Evidence

Martha Neil, "Gov’t. Puts Car in Court in Murder Trial," ABA Journal Online (August 7, 2008):

In an unusual effort to prove a murder case, prosecutors in Washington state have persuaded a judge to let them bring a car into the courtroom. The 2000 Ford Mustang in which victim Ronald Whitehead, 61, allegedly was shot to death "was hauled into the King County courtroom of Judge Steven Gonzalez in three bundles Wednesday night and assembled in time for when defendant Jon Ogden, the dead man's 20-year-old stepson, walked into trial Thursday morning," reports the Seattle Times. The government wants to show the jury how they believe Whitehead was shot four times by someone hiding in the vehicle.

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How Do Fingerprints Point?

Kenneth Chang, "Fingerprint Test Shows Not Only Who but What," NYTimes (August 7, 2008)

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When Will They Ever Learn -- about Circumstantial Evidence etc.

The byline in today's NYTimes reads "Anthrax Evidence Is Called Circumstantial." (The story is by Scott Shane.) The implication of the byline is that the evidence against the suspected (and now-dead) malefactor is therefore weak. The NYTimes should know better. There is weak circumstantial evidence. But there is also strong circumstantial evidence. The same holds true for "direct" evidence given by a putative eyewitness. The same holds true for scientific evidence. The same holds true for confessions.

"When will they ever learn?" Folk Song, the version by Pete Seeger and The Weavers still being the best known

N.B. The above post does not reflect -- and it is not meant to reflect -- my personal opinion (if I have one) about the guilt or innocence of Bruce E. Ivins.

the dynamic evidence page

A Merger of Subjective and Objective Factors in Factual Inference: Understanding a Bee's Vision

It is possible to make inferences about how bees are likely to view their world by carefully conducting experiments and inspecting the physiological and psychophysics data. We know that bees can see ultraviolet wavelengths of light. Many flowers have evolved flower patterns that suit the visual capabilities of bees, for example, some flowers have patterns that can only be seen with ultraviolet sensitive vision.

"Interview [of Dr. Adrian Dwyer]: Through the eyes of a bee," Alexander von Humboldt-Stiftung Newsletter 2/2008

the dynamic evidence page

Aleksandr Solzhenitsyn, Dead

See Aleksandr Solzhenitsyn Is Dead at 89," NY Times (Aug. 6, 2008).

This sad news has something to do with evidence. Before Solzhenitsyn's appearance many people in the West -- I am old enough to remember this -- were dismissive of claims that Stalinism led to the deaths of millions of people. But the evidence of death on such a massive scale was publicly available long before Solzhenitsyn burst on the international scene.

the dynamic evidence page