On the Balance of Probabilities

I was driving to Pittsburgh one evening last week, listening to NPR as I tooled along the PA Turnpike and then I-79 South from Cranberry.  They had some interview/call-in show with a guy on discussing a 50-year-old unsolved murder. 

The guy was forensic pathologist Cyril Wecht, long-time coroner in Allegheny County, PA (which is where Pittsburgh is) and one of the leading lights of the Oswald-couldn't-have-killed-Kennedy-by-himself school of Warren Commission debunkers.  And, of course, we're coming up on the 50th anniversary of the assassination which is naturally all over the media.

As the program was ending, the host/interviewer asked the question that it seems to me always haunts the assassination conspiracy theorists.

How'd all those people keep the secret this long?

I mean, really, is anything really a secret?  Everyone blabs.  And this would be one hell of a tale to tell over a few snorts (or sniffs).

Wecht's answer, for whatever it's worth, was that NSA managed to keep from Obama for five years that they were tapping Angela Merkel's cell phone.  Frankly, that's not much of an answer.  First, it's far from clear that it's true. Second, that's just the NSA not passing on a piece of information for a few years.  Hardly the same thing as a wide-ranging conspiracy involving numerous government agencies and individuals and maybe the mafia or Fidel Castro.  

Frankly, I don't know.  And what's ultimately interesting about it isn't whether there was a cover-up but the fact that so many people continue to think there was.  It's not altogether fanciful to say that the Kennedy assassination begat, albeit after several generations, the Tea Party.  The heritage being in the distrust of government.  They lie.  They all lie.  Especially when they say their telling the truth.

* * * * *

Consider that background for a trip across the Pond to drop in on MI6, the British spy agency, and in particular on the death of Gareth Williams.  (That's him to the right.) From the BBC.

He had been on a secondment with MI6 from his job as a communications officer at the GCHQ "listening post" in Cheltenham, Gloucestershire.

So Williams was a spy, specifically a code breaker, which by itself mightn't be of much interest and surely wouldn't be to me.  His death, on the other hand. . . . 

They found his body on August 23, 2010 after he'd apparently been missing for a week.  He was in his apartment, naked.  That happens, of course.  Lots of folks sleep in the nude.  Few of them, however, sleep in the nude inside a zipped-up sports bag, padlocked, in the bathtub.

Aha, you say, channeling Sherlock Holmes, 

Foul play.
The game's afoot.

So said the coroner's inquest after two years of studying on it.

During a seven-day inquest in May 2012, the question of whether Mr Williams could have padlocked himself into a bag in a bath was central.

Pathologists said he would have suffocated within three minutes if he had been alive when he got inside it.

None of his DNA was found on the lock attached to the bag and his palm prints were not found on the rim of the bath.

Coroner Fiona Wilcox concluded that "most of the fundamental questions in relation to how Gareth died remain unanswered".

But she said he was, "on the balance of probabilities", unlawfully killed.

Indeed.

Enter the constabulary.  The Metropolitan Police have been working on the case for three years, and their extra year of labor gives them a special insight in concluding . . . (wait for it)

Accident

Because, after all, they can't locate a bad guy.

Deputy Assistant Commissioner Martin Hewitt said he was satisfied it was "theoretically possible" Mr Williams could have padlocked the bag from the inside, although "many questions remain unanswered" as to the circumstances of his death.

But he said there was no evidence that the MI6 officer had intended to take his own life or that his death was connected to his work.

And he insisted it was "beyond credibility" that he had been misled.

"I do not believe that I have had the wool pulled over my eyes. I believe that what we are dealing with is a tragic unexplained death," he said.

Because of that "theoretically possible" thing.
Back to Holmes who, in one of the stupider things commonly thought brilliant, said

When you have eliminated the impossible, whatever remains, however improbable, must be true.

Of course there is no elimination of the impossible here.  But if it's hypothetically imagineable that he might have chosen to take a nap, naked, zipped into a sports bag that he also padlocked shut, why then, that's surely more likely than that someone killed him and the killer remains at large.  Killed him, perhaps, because of his work as a spy.

You'll be shocked to know that his family thinks the coroner got it right.  You'll be shocked to know that there's some thought that folks might imagine a cover-up by MI6.  You know, because it's "theoretically possible."  Even if "beyond credibility."

 * * * * *

I was in my high school physics class that day in 1963 when I heard that Kennedy had been shot.  By the time we'd left school a couple of hours later, it was confirmed that he had died.  I don't know whether Oswald acted alone.  I don't know if there was a massive conspiracy.  I don't know if Lyndon Johnson was involved or the CIA or the mafia or Fidel or some random guy on the grassy knoll.  It was an interesting parlor game for a bit, but . . . . Ah, what's the point.

There's an old joke about lawyers:

How do you know when a lawyer is lying?
His lips are moving.

They tell the same joke about politicians.


I don't much trust the government to tell me the truth.  I don't think I really did before Kennedy was killed.  But since then we know they do on a regular basis.  Democrats, Republicans, politicians of all stripes.  Officials of every sort.  And it's not just government.  Pretty much all institutions.  It's what they do.  It's what we expect of them.

The cops do it in their reports.  They do it so often on the witness stand there's even a special term for it, testilying.  (Actually, almost everyone does it on the witness stand, but we save testilying for the police.)  Ken Anderson did it in Texas.  Your local prosecutors do it, too, at least some of the time.

And just in case you were wondering, they do it across the Pond, too.

Epiphany

When my love swears that she is made of truth,
I do believe her though I know she lies.

 

Who'da thunk it?

Cops lie.

Under oath.

On the witness stand.

They lie to judges at motion hearings. They lie to juries at trials. They lie in depositions.

Really, they do.

Not all of them, and not all the time.  But enough of them.  More than enough, really, since even one lying cop on even one occasion is too many.

This is news to absolutely nobody who pays attention.

There is, after all, a reason the word testilying was coined and then made it into general circulation among those who practice in the criminal courts.

Now, if you couldn't figure out the reasons yourself, Brian D. Fitch is ready with the explanation: It's because they can rationalize it away.  Fitch has the credentials to explain.  He is, after all, a Ph.D. psychologist and also a lieutenant with the LA County Sheriff's Deparatment.  He hangs out professionally with cops who lie.

The solution, Fitch says, is serious ethics training, a clear ethics policy, and a system of rewards and punishments.  All this needs to be done in a "safe, supportive environment."  That way, over time, police will come to embrace honesty and to rat out the ones who lies and cheat.  Fitch even says that there's evidence this will work.

Sure.

Scott Greenfield is less than enthusiastic.

While I'm as much of a fan of empirical evidence as the next guy, I have to wonder why teaching police officer that it's wrong to lie demands rigorous training in a "safe, supportive environment." What's wrong with smacking them across the face with "don't lie"? But then, I'm no psychologist, and likely not as supportive of the difficulties of being a good cop as Fitch.

See, there are grey areas, borderline cases. 

What, exactly, is my obligation when my client tells me in confidence covered by the attorney-client privilege that the guy who's being executed next week is innocent of the killing and my client knows that because he's the one who did it?  Legal ethics point one way, morality maybe another.  Lawyers actually deal with that sort of issue.

The highway patrolman has to decide whether to stop the guy on the expressway who's careening wildly from lane to lane but close to the speed limit or the one who's driving 110 but sticking to his lane.

The doctor has to figure out exactly how to balance the need to give an honest assessment or risk with the need to provide some honest hope to the maybe, but maybe not, terminal patient.

I mean, sure, there are tough calls around the margins.

And then there's lying. And beating the shit out of someone because he didn't jump high enough or fast enough or mouthed off a little bit.

If you need training in those, it's hopeless.

And then there's Robert Fulghum's point.

And the larger point which is that if you didn't get those basic rules, you have no business being a cop.

I wasn't going to write about this because, really, it's kind of self evident.

Except, of course, that it's not.

I mean the rules are clear enough. Act with integrity. Don't lie. Don't cheat. Don't beat the shit out of people for fun.  But somehow we, too many of us, come to excuse it.

Judges know that cops lie on the witness stand.  They're as familiar with testilying as we at the defense table are.  But, for the most part, they choose to believe. Not just to give cops the benefit of the doubt, but to actually believe things they know are lies.

Except sometimes things happen.

The lie is too much and the judge just won't buy it.

Forty years ago this month, some burglars left a piece of tape on a door latch where it caught the eye of a security guard. In time, it brought down the President.

Last night, after 8,019 games, after a number of almosts, Johann Santana pitched the first no-hitter in New York Mets history.

Which is one reason we keep doing this work.

Oh, here's all of Shakespeare's Sonnet 138.

When my love swears that she is made of truth,
I do believe her though I know she lies,
That she might think me some untutored youth,
Unlearned in the world's false subtleties.
Thus vainly thinking that she thinks me young,
Although she knows my days are past the best,
Simply I credit her false-speaking tongue:
On both sides thus is simple truth suppressed:
But wherefore says she not she is unjust?
And wherefore say not I that I am old?
O! love's best habit is in seeming trust,
And age in love, loves not to have years told:
   Therefore I lie with her, and she with me,
   And in our faults by lies we flattered be.

h/t Greenfield who got the link to Fitch, well here's his summary.

Via Radley Balko and Pete Eyre, by way of an interesting post by Howard Friedman at CopBlock. Whew.

Lies and Psychosis

In civics in grade school, and again in law school, we're taught about the presumption of innocence. Jurors are told about it, too. Defense counsel harp on it. We work hard to educate our jurors about what it means and how it works. To educate our judges, too.

But the dirty secret of the law (OK, it's only one of the dirty secrets of the law) is that the real presumption is the presumption of guilt. When the jurors sit in the box, what they believe is that the defendant is guilty. If not, why would he be there? Where there's smoke, there's fire. Look at him, all lawyered up.

I know a judge, now retired, who used to tell prospective jurors just before voir dire,

You should understand that none of us in the courtroom believe the defendant is guilty.

That was nonsense, of course. The prosecutors believed him guilty, even if they had to talk themselves into the belief. Otherwise, it would be unethical for them to prosecute the poor bastard. Court security believed him guilty. And dangerous. The judge himself figured the guy probably did what they said. Hell, most of the time the guy's lawyers believed he was guilty.

So we struggle to make jurors understand that the presumption of innocence isn't about factual guilt (did he or didn't he do it). It's about legal guilt and what's necessary before that can be determined. And still, when the defendant testifies, it's a question of who you believe. More than one defense lawyer has said to a jury in closing argument, and without the slightest recognition that he was giving away the store and violating every principle of competent representation,

You've heard my client tell you what happened. The question is whether you believe her or the state's witnesses.

NO! IT'S NOT. (Excuse the caps. I get worked up about this.) The jurors can believe the defendant is lying up a storm, and it's wholly irrelevant. The question is never whether the defendant's version of the story is believed. It's whether the jurors believe the state's version.

Except in the real world, it's mostly not. When the defendant testifies, the trial generally ends up as a pure test of her credibility. If the jury believes her, she's not guilty. If the jury doesn't, she's guilty. The state's burden of proof disappears.

Which brings us to State of Ohio v. Freitag, decided last week by the 9th District Court of Appeals. There was only one question at trial: Was Freitag driving over the speed limit in the Village of West Salem? The trial judge said that he was, based on a radar gun. But the court of appeals deemed that evidence inadmissible and sent the case back to the trial court for a review of whether, based on the other evidence, Freitag was guilty.

That's where the lies start to matter.

Freitag made the mistake of testifying at his trial. So did his wife. They both lied. OK, maybe not. It's theoretically possible, I suppose, that they both told the truth. But I don't believe it for a moment. Neither did the judge. Neither would anyone else.

If Freitag had just testified that he wasn't speeding because he knew it was a speed trap and was being extra cautious, you could maybe have believed it. But he couldn't leave it at that.

[I]t was “completely impossible” that he was speeding because he is aware that the police constantly patrol U.S. 42.

His wife went even further over the credibility line.

[H]e was not speeding because he never exceeds the speed limit in West Salem or anywhere else.

And I harbor secret dreams to prosecute. Oh, wait. No I don't.

Anyhow, Freitag's defense included that bullshit. The judge now forced to rely on human testimony rather than the evidence of the radar gun, didn't buy it. Freitag was convicted. The problem was that there had to be some actual evidence of guilt. And there was but . . . .

Well, let's put it this way. The cop's cockamamie story was even harder to swallow than Freitag's. You know, judges are prepared to believe any BS that law enforcement types offer. But even they can go too far.

There was the highway patrol officer who testified that he gave a ticket to anyone he saw driving even one mile an hour over the speed limit on the Ohio Turnpike. It was too much. The judge nearly came over the bench he was so outraged by the bald-faced lie.

The lie in this case was subtler, and more dangerous. Patrolman Ken Roth claimed that years ago, when he first joined the force, he was taught by some unidentified officer in a manner Roth never explained to tell from a car's sound from 150 yards away when it's speeding. He can't tell how fast it's going, just that it's going faster than the speed limit. (Honest, that was his testimony.) He testified that there was a car coming from the other direction, but that he couldn't hear it. All he could hear was Freitag's car exceeding the speed limit. Oh, he also could tell because he saw Freitag's headlights in his rear view and side view mirror. Again, no explanation. He didn't claim to see them in relation to a landmark or to have clocked them or anything. He just saw the headlights and could tell Freitag was speeding.

The testimony was, the court of appeals said, "incredible."

Interesting word that. It means not credible/ not believable. Put differently, testimony that isn't credible is testimony you can't believe. If you don't believe what the cop said, then you think the cop is - what's the word? Oh, yeah. LYING. When you're under oath, that's perjury. It's a crime.

Did the court say anything about lying? About perjury? Nah.

Why go there? You can't just go about accusing police officers of lying under oath. Then someone might have to charge them with a crime. And somehow the judge would have to find them not guilty or he'd disturb the whole system with a demand that cops only testify truthfully.

Of course, there is a possibility other than dishonesty. It's possible that Patrolman Roth actually believes he can tell from how a car sounds whether it's speeding, even if he can't tell how fast it's going. If he believes that, then he isn't perjuring himself when he says it. Rather, he's demonstrating that he's delusional.

So here's what we know. When he testified in Freitag's case, Patrolman Roth either committed a crime or revealed that he suffers from psychotic delusions.

Either way, the good news is that there's nothing to stop him from keeping his job.

The people of West Salem may take what comfort they can from that.

H/t Jonathan Turley and Kevin Underhill.

Roll the tape

You know the old saw about how a picture is worth a thousand words. Well, this dramatic thing started happening a couple of decades ago.

People got video cameras and began taping stuff happening around them. The next thing you know, there's Rodney King getting the shit beaten out of him by the Los Angeles police right there on your television.

Fast forward, if you'll excuse the expression, a couple of years and video cameras started showing up in police stations. So you saw the police sexually assaulting a young woman in the Elkhart police station.

And with cameras in police cars, especially with the audio, just last week you might have seen the police planting drugs on someone and having the dog attack him. You might, also, have seen police in Florida planning to pin a DUI on a woman for an accident they caused.

And because of cameras in convenience stores attached to gas stations, we get to see Philadelphia police assaulting and then arresting a woman after the son of one of the officers rear-ended her car.

None of this is new. What's new is just how much of it there is. And that we get to see it for ourselves.

And just how dumb the cops are to do all this stuff while the tape is rolling. Or maybe they're not so dumb. Maybe it's an ingrained part of their culture, of the thin blue line, to accept that these things happen and to recognize that there aren't likely to be repercussions.

The truth is that police brutality, even outright criminality, is rarely punished with more than a slap on the wrist, if that. That woman who was beaten and arrested in the gas station. Officers asked the station owner to destroy the tape. He didn't. Internal affairs concluded they did nothing wrong.

Huh?

Juries believe what police say on the witness stand even when it's a lie. So do judges, who really do know better. It's called "testilying," and however much we all disapprove, the system tolerates at least some degree of it.

Years ago, I had a drug case. Two cars were driving on the Ohio Turnpike. It was a January afternoon. A highway patrol trooper, who testified that she was driving west at 65 miles per hour in the far right lane, noticed that the drivers of two cars going east, in the far lanes on their side of the road, also going about 65 miles an hour, had similar facial features. Yes, that's right. Across four lanes of traffic, a grass medial strip that was significantly wider than the length of a police car. Windows closed. Similar facial features.

Try it yourself next time you're on the highway. Bet you can't do it.

Anyway, she got suspicious. She found an excuse to stop one of the cars and radioed for another trooper to stop the other. His excuse for stopping the car: It was following too closely a semi that was driving faster than the car. Wait, isn't there something about the laws of physics here?

The judge believed the troopers. Or said she did.

Of course, there wasn't any video.
____________

Note: I've been saving these videos for a couple of weeks and can't frankly, tell you where I found most of them. But my sources include: Simple Justice, Jonathan Turley, Crime and Federalism, and Criminal Defense. If I forgot someone, or lost track, I apologize.