Blinded By Belief

The constitutional measure is Beyond a Reasonable Doubt.  It's near an end point on a legal continuum of evidentiary certainty:

• Mere Scintilla
• Reasonable Suspicion
• Probable Cause
• Preponderance of the Evidence
• Clear and Convincing
• Beyond a Reasonable Doubt
• Residual Doubt
• Beyond All Doubt

Legislatures and courts have tried, at one time or another, to explain or define all of those terms.  So have lawyers.  Only two of them have anything like clarity.

"Preponderance of the Evidence" means more likely than not.

"Beyond All Doubt" means absolute certainty.  Which, of course, isn't the same as truth, since it's perfectly possible to be absolutely certain of things that are not so.  (Consider the beliefs, once widely held, that the earth is flat and is the center of the universe.  Or consider the belief, now too-widely held, that Barak Obama was born in Kenya.)

But, again, the constitutional measure is Beyond a Reasonable Doubt.  That's how sure a jury is supposed to be that the government has proved every element of an offense before it can find the defendant guilty.  How exactly the term is defined (and if it is) varies some from jurisdiction to jurisdiction, sometimes from courtroom to courtroom.  Commonly, jurors are told things like,

It's the degree of certainty you would have to decide the most important of your own affairs.

Whatever the hell that means.

Here's the one thing we know.  It's sometimes not enough.

Factually innocent people are convicted of crimes.  I don't know the percentage.  Nobody does.  We hope it's very low.  But it happens.  And there's probably nothing we can do about it.  Switch to Beyond All Doubt and there'll still be mistakes.  Just remember the flat earthers and the birthers.

The problem is that trials aren't, and really can't be, about objective truth whatever that might be.  They're about proof, which is legal truth - something quite different from the elusive concept of objective truth.  And to talk about proof, by which I mean courtroom proof, legal proof, legal truth, in a meaningful way requires that you talk about belief.  Which brings us back to the flat-earthers and the birthers and the people who do or don't believe in evolution or biblical creationism or global warming or Sarah Palin's qualifications to be President of the United States.  Or the factual guilt of Cameron Todd Willingham or Mumia Abu-Jamal or (for that matter) John Wilkes Booth or Lee Harvey Oswald.  Or even Dick Cheney.

I've talked about this stuff before.  (You can find the posts here.)

What gets me off on it today is three things: 

• The Gulf Oil Spill;
• The print that was not from the finger of Manuel Quinta Guerra;
• The innocence of Tim Cole and the questionable guilt of Billy Ivey, Jr.

Start with the Gulf.  Barak Obama told us that the mess in the Gulf is

the worst environmental disaster America has ever faced.

We know that's true, because it's repeated a lot and who has a better candidate off the top of his head?  Except, you know, there seem to be better candidates.  As Justin Gillis explained in the New York Times, 

Scholars of environmental history, while expressing sympathy for the people of the gulf, say the assertion is debatable. They offer an intimidating list of disasters to consider: floods caused by human negligence, the destruction of forests across the entire continent and the near-extermination of the American bison.
“The White House is ignoring all the shades and complexities here to make a dramatic point,” said Donald E. Worster, an environmental historian at the University of Kansas and a visiting scholar at Yale.
The professors also note the impossibility of ranking such a varied list of catastrophes. Perhaps the worst disaster, they say, is always the one people are living through now. 

Still, those scholars offer, and Gillis discusses, some examples.  Along with the destruction of the forests and the near-extermination of the bison, there are the Dust Bowl, the Johnstown Flood, the mishandling of the Mississippi valley; and the Lakeview Gusher.

There's no simple answer, of course for at least a few reasons.  Much depends on how you define a disaster.  Much depends on how you measure which disaster (once you've established a universe of what you'll call disasters) is worst. 

But right now, except to a few experts and maybe Representative Joe L. Barton (he who apologized to BP for Obama claiming the company was responsible for the spill and getting the company to cough up $20 Billion which won't even begin to cover the human losses), the Gulf spill is the worst - because we think it is.  And every oil-soaked bird we see on TV proves it.  

Just like the fingerprint that two Houston fingerprint examiners were wrong about.  The Houston Chronicle  the story.

Authorities on Friday identified an ironworker with no criminal record as the suspect held in jail for four months in 1996 after the Houston Police Department's troubled fingerprint analysis unit wrongly tied his fingerprint to a homicide, records show.
In July that year, two Houston fingerprint analysts identified Manuel Quinta Guerra's fingerprint on a bloody fork found at the scene of a slaying in southwest Houston. The next day he was arrested, booked into the Harris County Jail and held on $20,000 bail. Guerra wasn't released until December, when the FBI confirmed the print belonged to someone else, according to the Harris County District Attorney's Office, which discussed the case Friday. The killing is still unsolved.
HPD leaders were not aware of the misidentification until the Houston Chronicle brought it to their attention this week.

Of course, this isn't the first false print match.  Not even the most famous.  That distinction (most famous) goes to Brandon Mayfield.  But it's another demonstration of how easily sureness can turn into error. 

And that's the story of Tim Cole (and maybe Billy Ivey, Jr.)  Cole and Ivey were both (years apart) convicted in Lubbock, Texas based essentially on the testimony of a single eyewitness.  The bizarrely named Avalanche-Journal, the local paper, has the story.  Cole died in prison while serving a lengthy sentence for a rape he didn't commit.  He was the first (and so far only) person to be posthumously pardoned in Texas.  Ivey had his conviction overturned while still alive to relish the result.

They're not the only flawed eyewitness ID cases, either.  I've said before that you should read Picking Cotton to get a real sense of just how badly even really careful eyewitness ID can screw up and how little value there is in certainty.  But what's interesting is that nobody really cares about this stuff.

When Grits reported on the Guerra fingerprint debacle, here was his punch line.

Perhaps most telling about the whole episode: The guy responsible for the misidentification 14 years ago is still with the department and still the source of problems.  

And when he talked about Cole and Ivey, it was to point out that Lubbock (and really all of Texas) could do things to reduce the likelihood of such bad convictions but won't really bother.

Because we all believe.  And it's close enough for government work.