It's an Accusation So It Must Be True

There is one and only one piece of evidence that it was Danny Brown who raped and murdered Bobbie Russell in December 1981. Her son, Jeffery, six-years old at the time, said it was.

Danny spent 19 years in prison.  Then the DNA came back.  Wasn't him.  It was, the DNA said, Sherman Preston.  That was no surprise since around that time Sherman was implicated in a number of related crimes - always acting alone.  In fact, by the time the DNA came back, he was serving a life sentence for a similar crime just a little bit earlier - a crime for which he was convicted in large part based on DNA.

Danny got out.  The prosecutor dismissed the charges.  Innocence triumphs.  It was a great day.

Except.

An investigator from the prosecutor's office had located Jeffery and went across the country to talk to him.  Now 27, he said now what he'd said then.  It was Danny he saw do that to his mom.  And Julia Bates, the elected prosecutor who'd gone into court to personally announce that she was dismissing the charges against Danny because no jury would find him guilty what with the DNA and all, maintained then and maintains now that Danny Brown in fact killed Bobbie Russell.

Because Jeffery.  Because Jeffery was 6 when it happened.  Because he was 7 when he testified. Because even though his testimony included things that obviously were not so, that were physically impossible (he claimed to see things on the other side of solid walls from where he was) he told the truth about seeing Danny do that to his mom.  Because, as she told Jennifer Feehan in the Toledo Blade five years ago when asked if she thought Danny was guilty

Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes.

"I do," she said. "I don't think little kids lie."

I thought then and think now that it was one of the stupidest things anyone has ever said.  Kids in fact lie all the time.  The dog ate my homework.  And of course, they're wrong a lot.  Even when they believe things.  (Again, Jeffery testified to several things that were demonstrably false, physically impossible.)  And that he still believes?  Sure.  That happens too.

The first time I wrote here about Danny's case, I told this true story:

Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.

Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.

Julie Bates, whatever else, is not stupid.  Yet "I don't think little kids lie."

What she meant, of course, is that she believes them when they accuse.

Which brings me, in my typical elliptical way, to my subject, Richard Beck's compelling but flawed new book, We Believe the Children: A Moral Panic in the 1980s.  

February 1984, KABC-TV News in Los Angeles included this breathless report on the investigation into allegations at the long-established, highly regarded McMartin Preschool:

Authorities now believe that at least sixty children were victimized. . . . [They] had been keeping a grotesque secret of being sexually abused and made to appear in pornographic films while in the preschools's care and of being forced to witness the mutilation and killing of animals to scare the kids into being silent.

Wow!  And then it turns out that the same things were happening at day cares and preschools across the country.  But worse.  Kids were being forced to eat body parts of murdered children.  Eyes were plucked out.  Satan worship.  Bodies buried in and around the facilities.

Hell of a story.  And, I should add, pretty much entirely bullshit.

Except everyone bought into it.  Police, prosecutors, juries.  Parents, god knows.  Doctors made up tests from which they could tell, tell for sure, that what was perfectly normal in a child was hard evidence of abuse.  Social workers and psychologists and psychiatrists and cops and parents coerced children into making up more and more outrageous stories.  

Sure there was no evidence.  The dead animals weren't found.  The missing and murdered children don't seem to have been missing or murdered.  The pornographic films (or the studios where they were made) weren't discovered.  The gouged out eyeballs and lopped off body parts don't seem actually to have been gouged or lopped.  But the press dutifully (and enthusiastically) reported as true.  And juries often believed.

Because like Julie Bates, nobody could believe that little kids would lie.  At least not about something really awful being done to them.   And after all, the more you had to threaten them for not telling or reward them for telling, the more obviously true the allegations.

It's that story, built around the McMartin fiasco that started it all, that frames Beck's book.  He's not the first to tell it, but he tells it well.  From the allegations to the investigation to the trials and then the unraveling as it became clear that the absence of evidence really wasn't evidence of guilt.

And as he tells the McMartin Preschool story, so Beck tells of the national hysteria that ensued. Because if the Golem came to LA in the guise of Peggy McMartin, it must be in a Long Island basement masked as the Friedmans and dressed as James Rud at the Valley Green Trailer court in Jordan, Minnesota, and in Niles, Michigan and Malden, Massachusetts and Chicago and. . . .

Good god!  These monsters were everywhere destroying the lives of our children.  And the evidence was, of course, that the children could be browbeaten into saying so.  And that, stunningly, all the real evidence - the films, the ritually slaughtered animals and children, the hidden tunnels, the lopped off limbs - none of it could be found.  How diabolical!  And how much that proved.

For its considerable strengths, We Believe the Children is not without its weakness.  

Trying to find an underlying cause, Beck turns to the woman's movement and the increasing role of women in society.  The religious right and social conservatives glommed onto the idea of evil daycare as a way of punishing women who'd abandon the role of housewife and take an actual job - forcing her children into the day care clutches of committed Satanists.  My god.  He may not be entirely wrong, but it's overly simplistic as most here's-the-cause explanations tend to be.  (As others have noted, Beck's evidence doesn't really support his argument.  Beck points to Gloria Steinem's financial contributions and Ms. magazine's 1993 cover story headline, "BELIEVE IT! Cult Ritual Abuse Exists. One Woman's Story.")

Nor is Beck's exploration of Freudian (and Freud's own) analysis and the psychiatric and psychological worlds' embrace of multiple personality disorder particularly convincing.  

But the story.  The panic, the ruined lives, the political careers made.  (Janet Reno, Clinton's Attorney General, rode to Washington on the back of Frank Fuster whose wife, Ileana, as part of her plea deal joined the chorus of accusers telling a jury about how Frank, wearing "a white sheet and a strange mask, . . . had sexually assaulted her with a crucifix" and forced her to abuse kids.)

If you think Salem and the witch trials, you're on the right track.  It's a connection Beck makes explicit in his introduction, though he downplays the horror of Salem noting that once the hysteria there ended, there were apologies and reparations.  The victims of the day care hysteria, on the other hand? Well, some have had their convictions overturned.  Others continue to rot in our prisons.  Then again, they killed a bunch of folks up in Salem, and apologies and reparations didn't really do them any good.

Perhaps oddly (or perhaps I'm just wishing that Beck would climb onto one of my own hobby horses), Beck doesn't do much looking at what we haven't learned. 

The Golem, after all, turns out not to have been in the witches of Salem.  They didn't exist.  Nor was the Golem in the preschool teachers and day care workers who didn't do a damn thing to the kids. (Nor, and I'm straying only slightly, was the Golem in the communists and fellow travelers, like President Eisenhower, who Joe McCarthy and his ilk took on in the late 40s and early 50s.)  No, the Golem was the witch hunters, the prosecutors (and cops and parents and media and your next door neighbors).   

And the Golem remains.  This is the lesson implicit in We the Children.  It's the Golem of uncritical belief in the monster under the bed.  The Satanist, cult-predator, child-care workers of the 50s who could only be stopped by locking them up forever - and the damage they caused, my god - are in this year's flavor those who ever considered a sex act outside the missionary position between spouses. And maybe even then.

From the sex offender registries to the hysteria surrounding campus sexual aggression (he looked at me without first obtaining permission) is but a small step.  Believe the children?  We believe the accusers.  Just ask Danny Brown.

--------------
My thanks to Public Affairs Books for providing me a copy of We Believe the Children  for this review.

Todd Akin: The Gift That Keeps On Giving

What I really wanted to write about was tribal law.
Honest.
My friend Nick F. was a public defender on a reservation.  From him I learned that the Bill of Rights does not apply on the rez.  At least, not in the tribal courts.  Of course, there's an argument (and not a frivolous one) that the Bill of Rights doesn't apply in any of our courts, but that's in practice.  In the tribal courts, it doesn't even apply in theory.  (I gather there may be an exception here or there for parts of the 6th Amendment, but that's getting way beyond my expertise.)
Anyhow, that's what I really wanted to write about.
One of these days.

* * * * *

Then I wanted to write about the quest of 82 year old Bernice Mable Graham Telian.  Seems that her great-great-great-great-great-great-great-grandmother, Mary Barnes, was hanged by the Godfearing paranoids lunatics friends and neighbors who populated Hartford, Connecticut in 1663.  They having concluded that she was a witch, you see.  Bernice wants to clear her name.
Mary Barnes was just one of 11 purported witches hanged in Connecticut between 1647 and 1663, and Bernice is trying to clear them all.  Massachusetts, New Hampshire, Virginia, they've all admitted they screwed up and killing innocent folk.  Not so much in the Land of Steady Habits. 
Bernice is aided in her quest to get the Connecticut legislature to act by the ACLU, NRA, Communist Party, Taliban Connecticut Wiccan & Pagan Network.
Ann Marie Somma of Religion News Network, in the Washington Post.

Now members of the Connecticut Wiccan & Pagan Network are pushing Gov. Dannel Malloy to sign a proclamation to clear the names of the victims. Supporters are asked to send Malloy a postcard that reads: “I am a Pagan/Witch and I vote. Clear the names of Connecticut’s eleven accused and executed witches.”
Anthony Griego, who is heading the effort, said the proclamation is nonbinding and doesn’t open up the door for lawsuits.
“The witch hunts were about fear and intolerance,” said Griego. His group even wrote to Britain’s Queen Elizabeth II seeking a pardon for the accused. The queen’s office wrote back, denying the request.

Drat that Queen.

Look, I tend to be wary of innocence claims, but I think we have a good one here.  Just ask no les an authority than Frank Kirkpatrick (that's him on the right).  He's the Ellsworth Morton Tracy Lecturer and Professor of Religion at Trinity college in Hartford.  He told Somma that

the evidence presented during the trials was flimsy at best. 

You think?
But no, I don't really have anything to say about that.

* * * * *

And anyway, Todd Akin's back.

You remember Todd Akin?  He of the claim that women don't get pregnant when their rapes are legitimate because they have a legitimate-rape-detecting somethingorother that stops those legitimately raping little spermies from interacting with their virginal ova. 

It turns out that Todd's been medically misinformed for a while.  It was back in 2008, we now know (and would have known sooner if we'd paid more attention to C-Span) that he explained how doctors perform abortions on women who aren't pregnant.  Commonly.

Don't want to watch the whole thing?  Here's the money quote.

You find that along with the culture of death go all kinds of other lawbreaking. The not following good sanitary procedure, giving abortions to women who are not actually pregnant, cheating on taxes, all these kinds of things. The misuse of anesthetics so that people die or almost die. All of these things are common practice, and all that information is available for America.

Put aside Todd's medically improper language.  (If there's no pregnancy, there's nothing to abort.  If there's nothing to abort, it's not an abortion.)  I mean, it's possible to do a procedure that would cause an abortion if only the woman were pregnant.  Presumably, that's what he had in what passes for his mind. The man is, after all, a mere lawmaker, charged with writing laws with such precision that the court's cannot misinterpret them.  We can't expect him to use words properly.
Instead, consider the claim that it's "common practice."  You know, like it happens all the time.

• You have the flu?  Get lots of rest and then come in for a D & C.
• Broken arm?  Let me just get that splint on and then we'll do a D & C.
• Heart palpitations?  Let's just do a D & C.
• Hey, maybe a hysterectomy while we're at it?  Or would prefer a mastectomy?
• Oh, and may I recommend a fatal dose of anesthesia?
• By the way, if you pay in cash, I won't have to report it.

h/t Gideon (for Bernice Telian) & Turley (for the latest on Akin)

For All Reasons

VISIT LUBBOCK - FOR ALL REASONS

So read the billboard on US 27 back when I lived in Lubbock - teaching English and then going to law school at Texas Tech University, clerking for a federal judge, and beginning my legal career there.  Lubbock had (and still has, I go back from time to time) its charms.  I don't regret my years in the Hub City.

I had the pleasure of teaching writing and literature for a living.  I got a pretty good legal education even if Tech's wasn't a top-tier law school.  I developed a taste for good barbeque.  I made good and lasting friends.  And my kids were born there.

On the other hand, we're talking a place that the National Weather Service once identified as having the dustiest air in the 48 contiguous states.  A place where the editor of the local newspaper (or maybe it was the publisher) used to take annual trips to South Africa and return to write pieces about the wonders of Apartheid.  A place that didn't see the problem with shutting down an inner-city, minority-focused middle school while opening an elementary school in the burbs and naming it "Whiteside."  A place where a member of the school board once urged its lawyers to argue in court that it was OK for the schools to distribute bibles to the students because while the Constitution may have required the separation of church and state, it didn't say a thing about the separation of church and Independent School District. A place where . . . . Ah, you get the idea.

Lubbock isn't without it's problems.  But then, no place is.

* * * * *

The Political news cycle has its own dynamic.  There's only so much data that can be devoted to the latest idiocy before the next one arrives, driving the old to the shoulder of the information superhighway.  (How 'bout that image!)

On the national stage (switching metaphors now), the Todd Akin dramedy will likely be with us for a while yet.  (See, for instance, Gail Collins's column in today's Times.)  If you're in Prague, Oklahoma, where the high school's teams are the Red Devils but the principle won't give valedictorian Kaitlin Nootbaar her diploma because she used the word hell (did I mention that the school teams are the Red Devils?) in her speech at graduation, you know the hot new topic.*

But if you happen to find yourself in Lubbock, well, you've got this guy.

He's County Judge Tom Head, and he's worried.  Good, decent man that he is, he doesn't pretend to objectivity, to following the facts and the law wherever they should take him.  (The good news is that as County Judge, he doesn't actually do a whole lot of judging.  The bad new is that he's an elected official who presides over the Commissioner's Court which governs the county and that he does get to do some real judging.)  As Andrea Sinclair wrote in the city's paper, the Avalanche-Journal (don't ask how you have an avalanche in a place so flat it makes my kitchen counter seem mountainous), he said

I cannot divorce my theology and my philosophy from my office.

OK, so when Head says the county needs a property tax increase, and explains that a good Republican is taking that unlikely opinion because Obama might win another term, you know he isn't just out to scare people.  He's speaking from this theology and philosophy.  Here's the story as Sinclair (accurately, I should add) reported it.

Head and County Commissioner Mark Heinrich appeared Tuesday night on a local television news broadcast to promote the tax increase, when the judge expressed concerns civil unrest of the worst proportions would break out if Obama wins a second term.

“He’s going to try to hand over the sovereignty of the United States to the U.N., and what is going to happen when that happens?” Head asked.
“I’m thinking the worst. Civil unrest, civil disobedience, civil war maybe. And we’re not just talking a few riots here and demonstrations, we’re talking Lexington, Concord, take up arms and get rid of the guy.
“Now what’s going to happen if we do that, if the public decides to do that? He’s going to send in U.N. troops. I don’t want ’em in Lubbock County. OK. So I’m going to stand in front of their armored personnel carrier and say ‘you’re not coming in here’."

I'm not being altogether fair. Head explained yesterday that the UN probably won't send its troops to Lubbock to put down the invasion.

* * * * *

Lubbock is, as I indicated above, the home of Texas Tech University.  The entire Texas Tech System, which includes the medical school and other bits and pieces, is led by Chancellor Kent Hance, himself a graduate of TTU.  When I moved to Lubbock in 1977, I learned that Hance was my congressman.  A few years later, while he was still in Congress, Hance switched from the Democratic to the Republican Party.  That led Jim Hightower to observe that Hance thereby raised the IQs of both parties.

h/t Paul Kennedy and also Dictators Maritza & Nick

----------------------

*Patrick, from Popehat, responded with a guest post at TheAgitator, captioned "What The Fuck Is Wrong With Prague Oklahoma School Superintendent Dr. Rick Martin?" It's worthy of reproducing in its entirety, something I've never done before with someone else's blog post.

You pig-fucking coward. You shit-eating child born from a buggered arsehole. You piss-colored pile of carrion. You dung-fly. You prickless and ball-lacking catamite. You son of a street-walking widow who never had a man except for money. You cock-sucking arse-licking defiler of sacred shrines, you brainless heartless gutless cockless offspring of an imbecile and a deformed cow, you flea-bitten child-robber who poisoned your father and raped your mother and sold your sisters to the Dutch and carved up your brothers for sale in a butcher’s shop, you gutter-hugging trader in second-hand excrement, why won’t you give this girl her high school diploma?

Scott Greenfield, who also reproduces the whole thing, has a less vitriolic but more analytical response to the story making much the same point.

Out of Time

Really, he's not the only idiot in Congress.  There is, for instance, John Fleming (R. Louisiana) who, as I've noted before, is

deeply concerned about the "Abortionplex" Planned Parenthood just opened in central Kansas.

The 900,000-square-foot facility has more than 2,000 rooms dedicated to the abortion procedure. The abundance of surgical space, Richards said, will ensure that women visiting the facility can be quickly fitted into stirrups without pausing to second-guess their decision or consider alternatives such as adoption. Hundreds of on-site counselors are also available to meet with clients free of charge and go over the many ways that carrying a child to term will burden them and very likely ruin their lives.

Of course, they had to make the facility appealing so everyone would want to go.  So there are also

coffee shops, bars, dozens of restaurants and retail outlets, a three-story nightclub, and a 10-screen multiplex theater—features intended not only to help clients relax, but to foster a sense of community and make abortion more of a social event.

Did I mention that the abortionplex that so concerns Fleming is an invention of the Onion, a satirical publication that covers fake news? As I said, John Fleming is an idiot.  It seems like the sort of thing he has nightmares about, so it must be true.

That's a different sort of credulity than we find in the folks who don't believe in evolution because it's icky and anyway the Bible says that man wasn't made from genetic material and natural selection but from dirt (Genesis 1:7), which is a whole lot more appealing - or maybe not.  And science be damned 'cause there's a book they believe.

And that's a different sort of credulity than we find in the folks who don't believe in global warming because they don't wanna and because it's a favorite thing of scientists (who are liberals, after all, not believing in the American dream and thinking that maybe that evolution thingy is right).

As an aside, a criminalist (that's a CSI guy) for the Toledo Police Department was once asked if they did DNA testing on a baggie of drugs that, it was alleged, a woman smuggled into the local lockup in her vagina and would have given to her boyfriend/inmate if only the deputies at the jail hadn't noticed it first.  The criminalist told her that there was no reason because DNA could only have been found in her secretions, and women only secrete during "that time of the month."  (Honest.  He said that.  You can't make this shit up.)

Anyway, this is about Todd Akin, Republican (which is not quite irrelevant as you'll see in a bit) Congressman representing Missouri's 2nd Congressional District.

 

Looking at the pictures, it appears those "timeless principles" were actually developed in the late 18th Century.  By a bunch of white guys who hung out together near the Mississippi and deduced that, well, whatever white guys in the late 18th Century who hung out together near the Mississippi deduced.

Apparently that included stuff like how there's two kinds of rape.

• "Legitimate" rape.
• Other rape.

Now, you may be wondering how these guys knew that. Todd doesn't tell us.  But he did explain an absolutely essential difference.  Women don't get pregnant from the legitimate kind.  He explained to KTVI-TV

If it's a legitimate rape, the female body has ways to try to shut that whole thing down.

Sigh.

Akin went on to explain that he's all for punishing rapists (I assume that's only the legitimate ones) but that on the off chance the legitimate-rapist-spermicidal-hormone all women have should fail, well, tough nuggies.

(He did later say that he "misspoke" and is really sympathetic to rape victims.  He said nothing about being an idiot who gets his medical knowledge from pictures of white guys traveling down the Mississippi on a raft.)

OK, there's a couple of things here.  First, as I said, Akin's a Republican, which wouldn't be of any particular interest (idiocy is not partisan) except that he won the Republican primary in Missouri and is running for Senate now.  And even his fellow Republicans are telling him to bail.

John Paul Jones

Scott Brown of Massachusetts says he should step aside. Ron Johnson of Wisconsin said so. John Cornyn of Texas, one of the most conservative members of the Senate said so.

Akin, though, says he's not going anywhere.  He told Mike Huckabee:

I’m not a quitter. My belief is we’re going to move this thing forward. To quote my friend John Paul Jones, I’ve not yet begun to fight.

One might note, if one were so inclined, that his "friend" John Paul Jones died in 1792. You know, when Akin was developing his "timeless principles."
I've noted before that there's no inherent relationship between certainty and truth.  I probably haven't mentioned, though, that Socrates was always explaining how little he knew and trying to learn more. 
Here's the other thing. In the House, Akin sits on the Science and Technology Committee.


h/t the Dictators (you know who you are)
 

Believe It - Or Don't

I haven't posted anything for a few days because I've been (1) working, (2) dealing with stuff that isn't working but still has to be taken care of, and (3) trying to put together a coherent post that will serve as a follow-up to last months "The Rule of Law of Rule - Part the First: Freedom's Just Another Word for Nothin' Left To Lose."

Really, I'd wanted to have finished that post tonight and gotten it up.  There are many things I want, of course.  But as the Stones made clear, you can't always get what you want.  And neither can I.

Anyway, I really did want to be finishing that Rule of Law of Rule thing, but there's this actual work I have to do and then, anyway, my friend Kathy G sent along the news that this guy

was actually elected to office by the people of the Louisiana's 4th Congressional District.

That's not actually the news she sent.  The news she sent is that John Fleming (that's him in the picture), who happens now to be serving his second term as Congressman from Louisiana's 4th, is deeply concerned about the "Abortionplex" Planned Parenthood just opened in central Kansas.

The 900,000-square-foot facility has more than 2,000 rooms dedicated to the abortion procedure. The abundance of surgical space, Richards said, will ensure that women visiting the facility can be quickly fitted into stirrups without pausing to second-guess their decision or consider alternatives such as adoption. Hundreds of on-site counselors are also available to meet with clients free of charge and go over the many ways that carrying a child to term will burden them and very likely ruin their lives.

Here's a picture of the facility.

Here's a picture of Barak Obama's birth certificate.

Which of these is fake?

I don't know what Rep. Fleming would say about the birth certificate.  But we know what he thinks about the Abortionplex because he alerted his facebook faithful (another reason I'm not on facebook) to the horror.

So let's be clear.  If you, like Rep. Fleming, believe in an abortion facility complete with

coffee shops, bars, dozens of restaurants and retail outlets, a three-story nightclub, and a 10-screen multiplex theater—features intended not only to help clients relax, but to foster a sense of community and make abortion more of a social event,

you believe in fantasy.

The Abortionplex story (and therefore the photo of the facility) came from The Onion, a satirical paper.  You know, it makes shit up.  As in, it's not true.  It's a joke.

OK, maybe it wasn't Fleming himself.  Maybe he's got some junior (or senior) staffer keeping up his facebook pages.  So maybe he's not the gullible fool.  Maybe he just hires gullible fools.

Which is perhaps good for the dimwitted (they need work, too), but probably not great for the rest of us.

The real problem isn't Fleming (except to his constituents and to the people of the United States and the world).  The real problem is a willingness to believe stuff that has no relationship to reality and a refusal to accept evidence to the contrary (though the story about Fleming believing the abortionplex story says that he's "obviously deleted" his facebook post).

Which is, of course, why I chose the Obama birth certificate as the counterpart.  Because to birthers, any evidence that Obama was born in the USA is obviously as fake as an Onion story.  But I could have chosen, instead, this picture.

Which kind of makes the same point.

And did I mention, these folks are eligible to serve on juries?

Six Impossible Things

Consider this a follow-up if you like, though I don't think that's exactly right.

In my last post, I talked about proof and truth and belief.  And then I read the first part (the next four parts aren't out yet) of Errol Morris's article, "The Anosognosic’s Dilemma," in the on-line NY Times.  Morris takes off from a 1999 article by David Dunning and Justin Kruger.*

Dunning was intrigued by a bank robber he'd read about who thought his likeness couldn't be captured on film (the bank's cameras) because he'd washed his face in lemon juice.  He was sure that would work because he had conducted experiments with a polaroid camera which clearly proved his photographic invisibility.  Obviously (to Dunning and the cops, but not - at least in advance - to bank robber McArthur Wheeler), Wheeler is incompetent.  And what intrigued Dunning (and then his graduate student Kruger) was Wheeler's inability to recognize his own incompetence.

Here's Morris.

Dunning and Kruger argued in their paper, “When people are incompetent in the strategies they adopt to achieve success and satisfaction, they suffer a dual burden: Not only do they reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the ability to realize it.  Instead, like Mr. Wheeler, they are left with the erroneous impression they are doing just fine.”

It became known as the Dunning-Kruger Effect — our incompetence masks our ability to recognize our incompetence. 

Morris interviews Dunning, gives some examples, and then focuses on Donald Rumsfeld's famous koan about knowledge.**

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know.

Dunning thought that was quite something.  He told Morris,

That’s the smartest and most modest thing I’ve heard in a year.

Morris riffs off that for a bit before raising the philosophical question that seems to intrigue him.

Is an “unknown unknown” beyond anything I can imagine?  Or am I confusing the “unknown unknowns” with the “unknowable unknowns?”  Are we constituted in such a way that there are things we cannot know?  Perhaps because we cannot even frame the questions we need to ask?

Interesting for a kind of speculation I enjoy but don't want to pursue here.

Instead, what I want to pursue about the unknown unkowns, and why this can be seen (though I don't think it properly is) as a follow-up to the earlier post, is the other part of it.

Rumsfeld recognizes that there are things we are aware we don't know.  (Morris uses, as an example, the melting point of beryllium.)  But the unknown unknown, that there's the stuff you just don't know you don't know.  You don't even know what it is.

Morris's question - is there a category of stuff that's beyond our lack of awareness so that we cannot know of our ignorance? - points beyond that.

But I want to take it in another direction, back to McArthur Wheeler, inept criminal.

Because you, er, know, his knowledge about the invisibility-producing effect of lemon juice is a different sort of unknown unknown.  He started with theory.  Then applied a rigorous testing procedure.  As a result, he knew.  But he was wrong.

Unknown (in the sense that he didn't know the answer) unknown (in the sense that he didn't know that he didn't know the answer).

It's the falsely known (not the unknown known, say the name of the 7th dwarf, which is something quite different).  And it takes us back to the birthers and the truthers and the folks who insist that no innocent person would ever confess no matter what and that cops don't lie, regardless of the video.

But it also takes us back to all of us.

We all believe things that are, demonstrably, not true, though presumably we don't know what they are.  To some extent, that's because we're lazy.  We believe the politician or Wikipedia or Nancy Grace or whoever.  To some extent, it's because we trust our memory and perception more than we should.  

There are also the things we believe, with great certitude, that might or might not be true but that are, for us at least, and at least now, beyond confirmation or disproof.

Richard Dawkins and Christopher Hitchens forcefully deny the existence of a deity.  Are they right?  They make compelling cases for the claim that a god defined as the omnipotent, omniscient, unique creator of the universe who oversees and perhaps reacts to or even intervenes in the day-to-day affairs of man and state is remarkably unlikely.  But they cannot falsify it.  The best they can do is say that there's no scientific evidence in support and that Occam's razor is (oddly, given that it's the eponymous Franciscan friar William of Ockham who developed the idea) points away from such a deity.  But that doesn't disprove god.  It just drops the odds.  

The theists have it no better.  Are there gaps in the understanding of the origin of the universe as grasped by the best thinking of particle physicists and cosmologists?  Yes.  Does that make them wrong when they (those that do) assert that there is no god? No.  The unexplained, even the currently inexplicable, is not proof of god as explanation.

Nor is error in calculus or error in explanation of biblical creationism evidence that the whole structure is a lie and, therefore, some other and identified structure is accurate.  But, and this is the point, we're all there.  We all believe things that are, at best, uncertain.

I started that earlier post by listing various evidentiary standards and suggesting that we mostly don't know what they mean.  Scott Greenfield pursued the idea with an explanation of how the very idea, so ingrained in our national and legal culture of "proof beyond a reasonable doubt" is ultimately meaningless.  But those measures (the list was incomplete, by the way) are the ones we have to deal with, and as Scott well knows, we can't just pretend they don't exist.

One key, at least, and this is why I'm carrying on about this now, is that we reach our audience where they are.  We engage them at their point of engagement, build belief, or skepticism from their base line rather than ours.  We lawyers pretty much all know that in theory.  It's the practice that's tricky.  And it's tricky precisely because we live in our own interpretive communities. 

Do this simply: The ghetto is different than the suburb.  Demography is telling.  It's not perfect as a belief measuring device, but it's a start.  So we want the jurors with the demographics we want (whatever they are).  And we want the ones who answer the questions the way we like.  And then we have to try and reach them not based on how we view the world, but on how they do.  As best we can.  Because what they believe is where we have to start.

Because proof, whatever the evidentiary measure, is about being convincing.  And that's about making people believe.

OK, maybe this is a follow-up.

Ballad of a Thin Man

Bob Dylan 

You walk into the room with your pencil in your hand
You see somebody naked and you say 'Who is that man?'
You try so hard but you don't understand
just what you will say when you get home
because something is happening here but you don't know what it is
do you, Mr. Jones?
You raise up your head and you ask 'Is this where it is?'
and somebody points to you and says 'It's his'
and you say 'what's mine?' and somebody else says 'well what is?'
and you say 'Oh my god am I here all alone?'
but something is happening and you don't know what it is
do you, Mr. Jones?
You hand in your ticket and you go watch the geek
who immediatly walks up to you when he hears you speak
and says 'How does it feel to be such a freak?'
and you say 'impossible' as he hands you a bone
and something is happening here but you don't know what it is
do you, Mr. Jones?
You have many contacts among the lumberjacks
to get you facts when someone attacks your imagination
but nobody has any respect, anyway they already expect
you to all give a check to tax-deductible charity organizations
Ah you've been with the professors and they've all liked your looks
With great lawyers you have discussed lepers and crooks
You've been through all of F. Scott Fitzgerald's books
You're very well read, it's well known
But something is happening here and you don't know what it is
do you, Mr. Jones?
Well the sword-swallower he comes up to you and then he kneels
He crosses himself and then he clicks his high heels
and without further notice he asks you how it feels
and he says 'Here is your throat back, thanks for the loan'
And you know something is happening but you don't know what it is
do you, Mr. Jones?
Now you see this one-eyed midget shouting the word 'now'
and you say 'for what reason?' and he says 'how'
And you say 'what does this mean?' and he screams back 'You're a cow'
'Give me some milk or else go home'
And you know something's happening but you don't know what it is
do you, Mr. Jones?
Well you walk into the room like a camel and then you frown
You put your eyes in your pocket and your nose on the ground
There ought to be a law against you coming around
You should be made to wear earphones
Cause something is happening and you don't know what it is
do you, Mr. Jones?

----------------

*Justin Kruger and David Dunning, “Unskilled and Unaware of It: How Difficulties of Recognizing One’s Own Incompetence Lead to Inflated Self-assessments,” Journal of Personality and Social Psychology, 1999, vol. 77, no. 6, pp. 1121-1134.

** Reproduced here from Hart Seely's "The Poetry of D.H. Rumsfeld" at Slate.com.  Watching it provides another dimension.

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.

I wouldn't want to believe it, either

While whatever crime was going on in the street, the defendant claimed that he was upstairs, down the block, gambling in a whorehouse. And he had an alibi witness.

Prosecutors salivate when they hear that the defense is alibi. It's not that they don't recognize the force of a really good alibi, it's that the alibi is almost never really good. Let me be clear. An alibi is not good just because it's true. An alibi is good if it's credible. And it almost never is.

First most people charged with crimes for which alibis are possible don't keep minute by minute calendars of where they are and what they're doing and who they were with. Neither do their witnesses. Cross examination goes roughly like this.

PROSECUTOR: So at 2 p.m. on that Thursday afternoon 26 months ago, you were driving around with the defendant looking for a place to get a pizza with pepperoni and olives?
ALIBI WITNESS: Yeah.
PROSECUTOR: And you remember that particular afternoon and remember the date and time because if you weren't with the defendant you wouldn't have wanted the olives?
ALIBI WITNESS: Right.
PROSECUTOR: What were you doing the day before at 2 in the afternoon?
ALIBI WITNESS: Probably watching TV.
PROSECUTOR: What were you watching?
ALIBI WITNESS: The game.
PROSECUTOR: Which game?
ALIBI WITNESS: Whichever one was on?
PROSECUTOR: What's the date and day of the week and time of the day that you spent with the defendant after the pepperoni and olives?

Nobody knows this stuff. If the witness claims to, the jury thinks he's lying. If the witness admits he doesn't know, the jury thinks he's lying about the alibi.

Second, the odds are that the guy who was driving your client around looking for pepperoni and olives isn't all that credible anyhow. Think about who you spend most of your spare time with. Family and friends, right? Your mother would lie for you. So would your best friend. At least, that's what the prosecutor will suggest. And it's what the jury is likely to believe.

Third, most of our clients don't have particularly savory friends to begin with. The alibi witness who could confirm that the defendant was gambling? His street name was Snake, which the prosecutor used during every question on cross examination. Oh, and Snake explained that he always gambled in whorehouses because "Sporting is my life."

The thing is that the defendant may well have been up in the whorehouse gambling with Snake or driving around looking for a pizza. Truth's a lovely thing is we can figure it out.

What got me thinking about alibis and about Snake was a question a graduate student asked me yesterday. We were talking about arbitrators (don't ask) and he wondered how they can know who's telling the truth. The answer, I said, is that they can't. So I told him about Snake. And then the rest of the class had questions.

So I told them the truth.

See, here's the thing. Our systems aren't about truth. They can't be. Truth is evanescent and fleeting and ultimately unknowable. Scientists do experiments to falsify. If the result of the experiment conflicts with the hypothesis, and if the experiment was done properly, then the hypothesis is wrong, or at least incomplete. If the experimental result agrees with the hypothesis, well, then there's agreement. It's evidence, but not final. There's always another experiment. Cold fusion, anyone?

The only things that are incontestably true are true within a defined framework. Parallel lines do not meet in Euclidean geometry because that's how we define parallel lines within Euclidean geometry. But there's also non-Euclidean geometry, and the answers vary. The universe has a curveture because our definition of universe is limited to this particular one in which we live, but the universe of universes is beyond our ken.

Ohio courts ostensibly observe the "physical facts rule," which says that testimony positively controverted by physical facts is immaterial and should receive no weight. As the Ohio Supremes explained in a products liability case back in 1975, the issue is whether "circumstantial evidence of physical facts is so conclusive as to wholly rebut oral testimony presenting a different version." So if the plaintiff says that he was permanently and totally disable from a war injury but evidence reveals that he reenlisted in the army two more times, the plaintiff won't be believed. (That's an example from a federal case in 1942.)

The physical facts rule makes so much sense that we shouldn't be surprised to discover only a minority of states observe it. (We should, perhaps, be surprised that Ohio is part of that minority, but then it's a rule we observe only nominally. It seems that courts never find circumstances in which it applies.)

The thing to note about the physical facts rule, though, is that it's about what we should believe. Some things, the rule says, simply aren't worthy of belief, so they must not be true.

The key word is belief.

Look, I explain to the client who tells me that it's his word against the word of the cop so he can't be convicted because that's a reasonable doubt. Reasonable doubt is about proof. Proof isn't about what you think or I think or even what's true. It's about what 12 jurors are willing to believe. They'll have a hard time believing you were gambling with Snake when there's all this other evidence that you were doing whatever. You may have been with Snake, but they have to believe that just a little bit for it to help you.

That's both why we have an adversary system and a consequence of it. The parties present and challenge each other's evidence (let's leave aside for now the fact that the defense need present no evidence at all). The jury sifts through it and decides what to believe. The goal in presenting evidence (or challenging it) is to make your position believeable. The long-term hope is that the results will accord with something we're willing to think of as objective truth often enough that the system won't implode.

So there's a metaphorical pathway here. What's presented as evidence is intended to be proof sufficient to engender belief which results in a verdict that, we hope, approximates truth. But the system isn't about truth because that's a will-o'-the-wisp. It's about belief, about whatever it is of which those jurors can be sufficiently convinced. And because it's about belief rather than unknowable truth, it's going to be wrong some substantial-but-impossible-to-know percentage of the time.

That's true of the criminal justice system and the civil system. We're going to get things wrong some. Factually wrong. We need to acknowledge and accept that. The problem is that the post-trial systems are terrible at catching and fixing those mistakes. The reasons are understandable. (Finality is a virtue; new evidence will often be no more compelling of truth than the old evidence; we can't really know the truth, anyhow; for just three examples.) But the consequence is one we should accept.

All of which is what takes us from Snake to Texas Governor Perry.

Snake was probably lying for his friend (and gambling and whoring buddy). But maybe not. We don't know the truth, cannot know the truth, and only have the word of the witnesses. Frankly, at this remove (it's considerably more than 20 years since I read the transcript), I don't recall the crime or the sentence or even the defendant's name. I have no insight whatsoever into whether he was factually guilty, and I have no reason to think anyone has ever even considered pursuing the matter after he was convicted. (I didn't represent him at trial.)

Then there's Governor Perry. He signed off on the killing of Cameron Todd Willingham by the State of Texas back in 2004. Back then, there was considerable evidence that the fire in which Willingham's children died, the fire he was executed for setting, was not set at all. It was, even in 2004 evidence seemed to indicate an accident that Willingham had no part in it. Since then, the evidence of Willingham's innocence - and the complete evisceration of the evidence of his guilt - has become remarkably clear. (The story is fully laid out here; I blogged about it here and here and here.) Three men only, it seems, remain adamantly convinced that Willingham did it.

The prosecutor maintains that although the fire was not arson, Willingham set it in order to kill his children. Yes, that's right, he acknowledges that there was no arson but claims that Willingham killed his children by burning their house down. Like the White Queen, he is comfortable in the belief in impossible things. It is a useful dissociative skill, I suppose, if you don't want to think you're responsible for the death of an innocent man. Hard to blame him for some degree of self-delusion.

Doug Fogg, who conducted the local fire investigation (the state's investigator is dead), maintains that it was an arson and the large number of nationally recognized and respected experts who disagree don't know what they're talking about. The evidence of arson, since fully discredited by scientific experiments, he insists is right and the science is wrong. (See here.)

And then there's Governor Perry. He doesn't explain much, just says he has no doubts. What he has is some power. In this case, the power to conceal. Tomorrow, Friday, the Texas Forensic Science Commission was to meet and review the accumulating body of exonerating evidence in Willingham's case. It would then make a recommendation. If it were objective, the recommendation would be that Texas acknowledge having killed an innocent man.

Except the Guv ensured that won't happen, at least not tomorrow. Yesterday, he replaced three members of the Commission - including its chairman. Hearing's off. Innocence delayed, if not precluded. Truth - it's just a fleeting thing. Why even bother?

There are those, many in fact, who believe the Earth to be no more than 10,000 years old. They, too, insist that the contradicting science is simply wrong. One may acknowledge the depth of their faith without believing that they can serve usefully as experts in the analysis of geological strata.

As I keep saying, I don't know what caused the fire that killed Willingham's three children. But neither does anyone else. What we've run out of is proof, run out of evidence that there was an arson. What remains is belief. Sometimes that's just a euphemism for delusion.

Tom Paxton explained:

I Believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

Oh the building inspector came around,
And he poked his head inside my door
Just as the plaster missed his head
Then he smiled and said,
“Well the building looks quite safe to me."

And I believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The politician told me just the other day,
That he really didn’t want the job at all,
But he would make this sacrifice for me,
If I would only place my trust in him.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And the labor leader told his membership,
That his limousine was no extravagance at all.
His cocktail parties at Miami Beach,
Merely helped him roll the Union on.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The Commissioner of Public Safety called,
On the people to support their local cops,
Who never ever use any extra force,
When a kindly word would do as well.

And I Believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And there seem to be even more believers than ever these days.

********************
I can't find a free version of Paxton singing it. This is some other guy.
http://www.youtube.com/watch?v=vTNDDNuNB50