You Thought NSA and DEA and the Rest of the Alphabet Agencies Were Invasive? You Ain't Seen Nothing Yet!

How different is that from Big Brother?

So wonders Alan Alda as yet another academic neuroscientist runs yet another subject through the functional MRI machine and gets a hint of what they may someday be able to tell.

Used to be if they wanted to figure out if someone was a witch, they'd tie the person up and toss her in the water.  If she sank, she was innocent.  Ah, but if she floated up to the surface and escaped . . . . Only a witch could do that.  How much better we are now, what with lie detectors and the collective guesses of 12 good men (and women) and true.  And we have all that nifty forensic bullshit of fingerprints and bite marks and ballistics that trained lookers just know provides proof positive because dammit those things look alike and they can't ever be mistaken about that sort of thing.  Just ask Brandon Mayfield, who was positively and repeatedly identified by the best fingerprint examiners at the FBI as the guy who bombed the train in Madrid because his

Ooops.  Son of a bitch.  They fucked up.  Not him.  Innocent guy.  Shit.  That can't happen.

But just suppose. Suppose that the next wave of forensic scientists can look inside your brain.  Imagine that they can roll you into the magnetic resonance imaging machine, do what's called a functional MRI (fMRI to the cognoscenti), and tell from the parts of your brain that light up when you answer questions whether you're lying.  Or whether that person you identified is someone you've actually never seen before.  Or whether the guy who says I was never in that 7-11 actually has a picture of it etched into his brain in a way that the fMRI can develop.

That's the sort of thing that explored in a frankly fascinating - and if you believe in autonomy and civil liberties and due process and our adversary system of justice fairly terrifying - two-part series on PBS to be shown September 11 and 18.  (And thanks to PBS and WNET for providing me with an opportunity to screen the series in advance.)  It's called Brains on Trial, and it's well-worth watching.

Start with a fake crime.  Three guys burst into a carry out to rob the joint.  One's pointing a gun at the guy behind the register.  It's loud and messy and naturally the guy's wife comes out from a room at the back and the one with the gun is startled and frightened and turns and pulls the trigger.  She lives, but with massive brain damage.

From fake crime to fake trial.  But in a real courtroom with real lawyers, an AUSA and a criminal defense guy.  And a real judge, the Honorable Jed Rakoff.   And there's a jury (we don't learn who they are).  Of course, the trial is truncated and scripted and shown in fragments and lasts all of maybe 6 or 7 minutes if that (I didn't time it).

But the faux trial, like the faux crime, is just window dressing.  The real show is what the various neuroscientists and researchers show Alda about where their research seems to be heading.  And Alda's chats with Duke Law Prof Nita Farahany about what it all means and how it can be used in a courtroom.  (Gee, if they can read the defendant's brain from a distance does the Fifth Amendment's protection against self-incrimination apply?  Tough call, Nita says while ignoring completely the 4th Amendment implications.)

Some of this stuff isn't quite so cutting-edge as they'd like you to believe.  We've known for a while now that the brain does not fully develop, it's wiring doesn't get properly wrapped, until a person is around 25. The loosely wired brain suffers from weak judgment and poor impulse control.  That's why kids are, well, kids.  And it's why the legal system treats them differently.  And, frankly, it's why it should treat young adults differently, too.  A point Alda and Farahany discuss and agree on.

And some of it - well, the idea of running scans of psycopaths so that (at least this is the suggestion) similar scans can be done of the convicted to determine whether they're psychopaths and should therefore be locked up forever.  Except, of course, the whole idea of psychopathy is something of a parlor trick and psychological charlatanism.  And the test - we'll look at the brains of psychopaths to tell whether they're different so we can figure out who's a psychopath - is self-referential and circular and built on a foundation of bullshit.

Some of what we learn about, on the other hand, is quite stunning.  It turns out, at least according to one study, that when adolescents are with their friends, just the fact of the friends' presence makes a serious difference in their behavior.  Alone, they're just like adults.  But while adults are the same with friends as they are alone, adolescents become more reckless, more impulsive, inclined to show off. It's not that the friends distract or egg them on.  It's just their presence.

It's when you put adolescents with their friends that their behavior and their brain pattern changes.

Maybe.  As I said, it's one scientist's study.  And of course it's preliminary.  And maybe there are a dozen other neuroscientists who get contradicting results.  I don't know.  That's the problem across the board.  Where the studies are truly at the forefront, breaking new ground, figuring out how they can use fMRI to measure and predict and reveal details about behavior, they're not trustworthy - at least, not yet.

This not-science-but-we're-working-on-it isn't ready for prime time (except on TV where it's in fact being shown in prime time).  When it is, if it is someday, if the scientists can simply look inside the brain and see just what happened and why, if they'll be able to determine actual remorse, if they can show that to the jury.

Which brings us back, of course, to the adversary system and those 12 good people and true.  And again to Nita Farahany who observes, rightly, that

every time they bring new science into the courtroom, there's an overreliance by the jurors.

They believe.  They want to believe.  Because the men in lab coats who speak with such certainty.

Of course, this is television even if it's PBS.  That means sexy wins out over careful.  It means more focus on the hocus pocus and the sci-fi and less on the hang-on-this-may-just-be-bullshit.  See, here's a clip that didn't make it into the finished product.  But it's an essential caveat.

A Tale of Two Tragedies

d'Hedouville who lives in Washington, D.C., told Taylor the justice system worked, both in his conviction and eventual freedom.

Gimme a break.

December 19, 1970, Tucson, Arizona, a horrible fire swept through the Pioneer Hotel.  28 people died in the blaze, a 29th died from its effects some months later.  Louis Taylor, a 16-year-old black kid was in the hotel that night trying to sneak into the Hughes Aircraft Christmas party and cadge some free drinks.  When the fire started, he and a custodian tried to put it out.  When they couldn't, he helped some of the trapped and injured get out.  A few hours later, he was arrested.

It was, said Cy Holmes, the lead fire investigator, arson.  And, he said (amazing what you can figure out from the ashes), it was probably set by an 18-year-old black guy.

Trial lasted 7 weeks.  Taylor said he didn't do it. The jury said he did.  They found him guilty of murder.  28 times.


The jury may have been convinced. Not so the judge. From the Arizona Daily Star.

After saying he would not have convicted Taylor, Judge Charles L. Hardy publicly apologized for second-guessing the jury. "The jury had so much conflicting evidence that I just judged some of the evidence differently than they did," he told the Arizona Daily Star in March 1972.

Regardless, Hardy sentenced Taylor to life in prison.  28 times.*

That was then.  This is now.  Basically everything fire investigators once believed about fire (except that it burns) has proved to be, let me put this nicely, bullshit. See, what happened is that some scientists came along and instead of relying on assumptions and hand-me-down wisdom of the ages and well, gosh-it's-just-got-to-bes, they actually did stuff like conduct experiments.  And they found that all those assumptions and hand-me-downs and gotta bes were, as I said, bullshit.

We've been down this road before, most dramatically in the case of Cameron Todd Willingham.  You remember, he's the guy who was executed for killing his kids in an arson fire that there's no actual evidence was arson even though the fire marshalls back then thought there was (though even then they should have known better).

Willingham is dead, though Rick Perry knew (at least he knew if he bothered reading the papers in front of him) that the evidence of arson was bullshit when he signed off on the killing.  Louis Taylor, though, is alive.  And as Yogi said, "It's déjà vu all over again."  The math is simple.  In 1970, it looked like arson (and apparently arson by an 18-year-old black kid).  In 2013, and really for some time now, there's simply no way of telling why the fire started.

Now, to dip into the arcana of law for just a moment, the Constitution requires that a person can be convicted of a crime only if every element of the offense is proved beyond a reasonable doubt.  One element of murder is that someone did it, that the death wasn't just a result of chance accident caused by nobody.  But what science tells us is that there's no way to know whether that 18-year-old black kid - or anybody else - started the fire.  Which means, that as of today, there's no way Louis Taylor should have been convicted.  Judge Hardy (those of you old enough to remember Andy Hardy may recall that his father was a judge, though presumably not this one) should, it turns out, have gone with his second guessing of the jury.

It's now 42 years since Louis Taylor was sentenced to prison for life.  And he's out.  His lawyers from the Arizona Innocence Project filed a motion for new trial.  Yesterday, after first refusing a deal, Taylor entered pleas of No Contest to 28 counts of murder in front of Superior Court Judge Richard Fields.  Fields sentenced him to time served and said "Welcome Home."

So Taylor's now a free man.  Sort of.  He's still (or again, depending on how you want to look at it) convicted of 28 murders there's still no real evidence were actual murders.  But he's out.  Which is something.

Of course, the prosecutors still think he did it.  Don't need no stinkin' evidence.  They just know.  So does that fire investigator who just knew it was an 18-year-old black kid.

Holmes, now 83, told The Associated Press on Monday he still stands by his determination that the fire was arson. 
"There's no question about it," he said. He added that the new findings by Taylor's defense experts are based on incomplete information because a lot of the evidence was destroyed. "They didn't spend two full days digging through that place."

No, instead, they looked at how fire actually works.  At science.  At physics.  At, you know, stuff that isn't old wives tales.  Doesn't matter.  Oh, sure there's that thing about their being no stinkin' evidence.  But what does that matter?  From today's Daily Star.

At a news conference after Taylor's hearing, Pima County Attorney Barbara LaWall explained the decision to offer the plea agreement.
Earlier this year, Justice Project attorneys filed a motion for a new trial citing advancements in fire investigations, LaWall said. Had a judge granted the new trial, it would have been difficult for county prosecutors to get a conviction because witnesses have died and the physical evidence is missing.
Some of the evidence was destroyed, and some was given to attorneys involved in civil suits against the hotel and the company that manufactured carpeting for the Pioneer.
In addition, the defense team had experts in modern forensic fire science evaluate the case and agree to testify that they would not have ruled the blaze arson. Even an investigator with the Tucson Fire Department who reviewed the available evidence was not able to determine what caused the fire.
"We concluded that justice would best be served in light of unique facts of this particular case by allowing Louis Taylor to plead no contest at this time, whereupon the court then could affirm his guilt and then he would receive time served in this case of 42 years," LaWall said. "This is not an exoneration."
The Pima County Attorney's Office stands by the original conviction, that Taylor is responsible for the fire.
"We felt that the conviction was righteous, that it would be unfair for Mr. Taylor to simply walk away without that conviction, that it was important to have that conviction for the victims who survived and for the community to know that yes, the right person was convicted," Deputy Pima County Attorney Rick Unklesbay said.

So they let him plead to 28 counts of murder because they couldn't prove he was guilty. And he took the deal because you never really know what will happen, and he's now out of prison.  Which is no small thing.  As Taylor himself explained it in the prison parking lot when he was released,

It’s a tale of two tragedies, the Pioneer Hotel fire and my conviction.

Which brings me back to where I began.  There were, in the courtroom yesterday, family members of those who died at the Pioneer Hotel that December night in 1970.  Only one spoke.

“Mr. Taylor, I stand in front of you today to say I harbor no feeling of ill will or vengeance against you,” said Paul E. d'Hedouville II, the only person to speak at the hearing on behalf of the victims.
D'Hedouville was 4 years old when his father, an attorney, was killed in the fire. He told Taylor of events his father missed, like graduations and weddings and holidays. d'Hedouville who lives in Washington, D.C., told Taylor the justice system worked, both in his conviction and eventual freedom.
“Do as you choose Mr. Taylor, but choose wisely,” D'Hedouville said.
“Do not waste your new beginning at life.”

We've been down this road before.  

42 years in prison and now a new set of convictions for 28 murders that there's no evidence Taylor committed and that even the judge who tried the case didn't think the state proved beyond a reasonable doubt (which, in any system where words actually have meaning, would mean that the state didn't prove it back then and that Taylor should have been acquitted).   I'm sorry, that's not evidence the system worked twice. 

It's evidence the system fucked up horribly once and spent decades not acknowledging it.  And it's evidence that the system is still not working.  On the other hand, as I've said, Taylor is out, which is no small thing.

And I suppose it's a good thing that D'Hedouville harbors no ill will for Taylor and urges him to "choose wisely" and not waste his "new beginning at life."  At age 59.  As a twice convicted mass murderer.  Endless possibilities, I'm sure.

Here's another thing.  Louis Taylor and Todd Willingham aren't the only guys who were convicted of horrible crimes based on bullshit fire investigations.  And Taylor's not the only one who's still alive.  Lots of the others are out there - convicted felons, maybe convicted killers.  Some still in prison. Some on death row.  And nobody, almost nobody, sees a horrific injustice or gives a fuck.

After all, their convictions proved the system works.  And Taylor got out, which certainly proves that it works yet again.

Or not.



More at Preaching to the Choir  

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*The 28 life sentences were to be served concurrently (Arizona Daily Star) or consecutively (NBC News).  Either way, he wasn't going anywhere.

Praise the Lord and Pass the Condoms

Here are some of the things I haven't written about lately but would have if actually practicing law hadn't got in the way.

• Steven Hayes wants Connecticut to kill him now.
• Despite the best efforts of the good people in Florida, they didn't get to kill the Prince of God last night.
• Executions at a comparative snail's pace this year, despite strides in Oklahoma (4), Arizona (5), and Mississippi (6).  Texas has only managed to commit 10 murders this year.  Nationally, we're sitting at 32.  Of course, Texas has one planned for tonight, and there are more around the country to come.
• The Oregon Supreme Court has agreed to decide whether Governor Kitzhaber has the right to put off the execution of Gary Haugen even though Haugen doesn't want him to.  A lower court gave Haugen a grudging win on that issue a couple of months ago.
• It's not just a shame that scientists don't know when and where the next major earthquake will strike.  it's a crime.
• There may be fewer bayonets now than there were in 1917, but there's still a hell of a lot of them.

As I say, though, I've been busy practicing law.

But this is election season. The lies and half-lies, the misrepresentations. The I-stand-foresquare-and-permanently-for-whatever-position-today's-audience-favors The refusal of any major party candidate actually to address matters of civil liberties and criminal justice, of constitutional rights, of the Rule of Law or the Law of Rule.

So the death sentence and ensuing trial of Khalid Shaikh Mohammad.  (Yes, it is Wonderland:  ‘No, no!’ said the Queen. ‘Sentence first — verdict afterwards.')  It will be scrupulously fair, and we want the world to know it.  Which is why there are buttons in the courtroom that will turn off the microphones to prevent anyone from hearing evidence or argument the government wants to keep secret even if it's already been published in the press.  And why the defendant is prohibited from testifying about how he was tortured by the government.  And why the government will (I'm confident about this, though as with all prediction, it's at least theoretically possible I'll be proved wrong) absolutely reject the defense request to televise the trial live and worldwide.

And then there's rape and the Republican candidates for Senator.

First, Todd Akin who believes that legitimate rape victims have a secret something preventing pregnancy.  Even if he used the wrong word. Of course, maybe it's because doctors don't know about that secret legitimate-rape-contraceptive that they keep performing abortions on women who aren't pregnant.  (Which you might think wouldn't bother the anti-abortion crowd so much since, after all, what''s the harm in aborting a fetus that doesn't exist?)

Then there's Tom Smith who thinks getting pregnant without benefit of clergy is just like getting pregnant from a rape (although, of course, the latter may be gynecologically impossible).

Now, racing hard to catch up to his fellow senatorial the candidates from Missouri and Pennsylvania, comes Indiana's Richard Mourdock who explained last night that when a rape victim get's pregnant, it's a gift from God.  (He didn't say whether that's because only God can override the secret legitimate-rape-contraceptive.)  And, of course, since God's given her that pregnancy via rape, it follows that she should be grateful for the rape.  OK, Mourdock didn't say that last part.  And he says he opposes rape. But really, when it leads to the joy of being the mother of a rapist's baby - truly a special gift from God.  How could she not give thanks for being raped?

Bonus:
My friend Bob W. directed my attention to this (found at Turley)  from the Rev. Phil Snider of Brentwood Christian Church on providing protection for the LGBT community under Springfield, Missouri's anti-discrimination ordinance.  (Please, watch all the way to the end.)

Which gives me the excuse to reproduce Soggy Sweat's brilliant Whiskey Speech.  Soggy was serving his single term in the Mississippi legislature at the time (April 1952), and a hot topic was whether the Magnolia State should repeal prohibition.  Soggy took the question on at a banquet.

My friends,

I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it might be. You have asked me how I feel about whiskey. All right, here is how I feel about whiskey.

If when you say whiskey you mean the devil's brew, the poison scourge, the bloody monster, that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean the evil drink that topples the Christian man and woman from the pinnacle of righteous, gracious living into the bottomless pit of degradation, and despair, and shame and helplessness, and hopelessness, then certainly I am against it.

But;
 
If when you say whiskey you mean the oil of conversation, the philosophic wine, the ale that is consumed when good fellows get together, that puts a song in their hearts and laughter on their lips, and the warm glow of contentment in their eyes; if you mean Christmas cheer; if you mean the stimulating drink that puts the spring in the old gentleman's step on a frosty, crispy morning; if you mean the drink which enables a man to magnify his joy, and his happiness, and to forget, if only for a little while, life's great tragedies, and heartaches, and sorrows; if you mean that drink, the sale of which pours into our treasuries untold millions of dollars, which are used to provide tender care for our little crippled children, our blind, our deaf, our dumb, our pitiful aged and infirm; to build highways and hospitals and schools, then certainly I am for it.

This is my stand. I will not retreat from it. I will not compromise.

Doubling Down

"What do you read, my lord?" asks Polonius of Hamlet who accurately but mockingly replies

Words, words, words.

The thing is, Hamlet is mocking both himself and Polonius.

The prince has been charged by the ghost of his father, old King Hamlet, to kill his uncle Claudius, brother of the old king, successor king himself, and stepfather to the prince having married the old king's wife. (A too long and cluttered sentence, but I assume you know the plot, so it doesn't really matter.) Polonius, pompous busybody and courtier (and father of Hamlet's girlfriend), isn't exactly ignored, but is put in place for his nosiness.  And Hamlet himself, why, all for him is words.  He hems back and forth.  He cannot decide. 

To be or not to be.

It's all words.

But, of course, they're powerful things words.  I've observed that before about them.  They matter.

As lawyers, they're the tools we use.

Politicians, too.  

But with great power comes great opportunities for fuck ups.  Consider Fukushima or Chernobyl.

Take Todd Akin. Please.

Unless you've spent the last 72 hours or so in a cave, you know the basic plot.  Asked on TV about abortions in cases of rape, Todd explained that he's talked to lots of doctors and learned that there are two kinds of rape (at least) and that women's bodies have a magic contraceptive agent that can tell the different sorts and work whenever the rape is the "legitimate" sort.

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

You know.

Now, Todd Akin is a deeply religious man as well as being an idiot. 

And it came to pass that upon his spewing of offensive shit and stupid shit both, there arose a great cackling among his opponents and a great consternation among his fellow believers who are a shade too smart to get caught actually saying anything as dumb as he did.

"Quit the campaign" came the voices from those supporters of science and evidence except when it involves actual science and evidence.  John Cornyn, Karl Rove, John Ashcroft, Mitt Romney (one waits in vain to hear from Sarah Palin) all said Akin must quit.  The party will no longer fund his campaign.  Rove's super PAC will no longer fund his campaign.

They did not know the sort of man with whom they were dealing.

Yes, he said those things.  But he has deep empathy for rape victims (at least the legitimate ones), rape being a horrible crime and all.

I used the wrong words in the wrong way, and for that I apologize.

Those wrong words, he said, were

ill-conceived

"A bit like a rapist's child, perhaps," as my friend Hilary said.  (Really.  He said that. You can't make this shit up.  Though you can set it off and print it in boldface.) 

Of course, it's not just that the words were wrong.

That's what happens when you say dessert instead of desert or when autocomplete changes enemy to enema.

Todd's problem wasn't poor word choice.  I mean what would the right words have been?

OK, I know.  He didn't mean "legitimate" rape.  He meant "forcible" rape.  (He's tried that tack before - as has Paul Ryan, by the way, who's on the Romney express now insisting he's never said any such thing, just as he also insists he was for the stimulus before he was against it  But I digress.)

But see, "forcible" really isn't much better.  It just tries to define those rapes that are "legitimate."  Because, one assumes, statutory rape is OK.  And date rape is OK.  Rape only counts, is only really really wrong if the victim also gets the shit beaten out of her.

Which is, apparently, what releases the magic contraceptive.

Timex Todd has taken a lickin' but keeps on tickin'.  He says he's in for long haul.  Has a new ad out called "Forgiveness" that apologizes for using those "wrong words." And that says he really does care deeply and that illegitimate rape isn't a mitzvah.  But the baby is and mom should be honored to have the chance to carry the legitimate rapist's child to term if she should be fortunate enough not to have the spermicidal gene.

Todd's is the great American moment. He won't be swayed by party elders or wiser heads.

(Nearly all heads are wiser, but I'm digressing again.) He told Mike Huckabee,

I believe the defense of the unborn and a deep respect for life, which underlie all of America, those are important parts of who we are. And they’re not things to run away from.

Now you may not have known that "the defense of the unborn" is what "underlie[s] all of America."  But then you, unlike Todd, aren't channeling God. John Eligon in the Times.

It was “appropriate to recognize a creator, God, whose blessings of life, liberty and the pursuit of happiness is the very source of American freedom,” Mr. Akin, 65, said in a radio interview. “And that part of the message I feel is missing” from the campaign, he said, adding, “That’s the reason why we’re going to continue. Because I believe there is a cause here.”

And you didn't get the Republican nomination for Senate in Missouri.

I'd Know That Face Anywhere . . . . Ooops, My Mistake

My client had a beard at the time.  No question about that.  The eyewitness gave a description that didn't mention a beard.  Somehow, you'd think that might be something he have remembered.  The then Chief-Justice of the Ohio Supreme Court thought so, seemed to be troubled by it when he said to the bearded prosecutor,

I might not remember much about you tomorrow, but I'd remember you had a beard

Another justice, ever ready to help out the state, observed that if someone pointed a gun at him, he'd be mighty sure to get the identification right, and that the witness had identified my client in court.  He was right about the witness who did point to my client.  He was wrong about what happens if someone points a gun at you.

Here's what happens.  You don't look at the guy with the gun.  You look at the gun.

We've learned a lot about eyewitness identification in the last 30 years or so.  Mostly what we've learned is that it's altogether unreliable.  Study after study shows the same thing.  Memory is faulty.  Those images that are burned into our brains are malleable.  The fact that we're sure?  Irrelevant.

But it's compelling.  The cops believe it.  The prosecutors believe it.  The judges believe it.  Most importantly, the juries believe it.

And it's just not reliable.

Back in the 70s, in Neil v. Biggers and Manson v. Braithwaite, the Supremes tried to set out some limits on misuse of eyewitness identification.  The concern was primarily with unduly suggestive procedures and what we got was a small series of considerations for the judge to balance if you could convince the judge that the procedures the cops employed were unduly suggestive.  Then, if the ID was too hopeless, the judge was to exclude it.  The decision ostensibly swung on five factors:

1. Opportunity to view
2. Degree of attention
3. Accuracy of description
4. Certainty
5. Time between event and identification

And then, this time as direct quote from Manson,

Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Nice in theory, nearly worthless in practice for the defense.   (Let the jury sort the damn thing out.)

And truly worthless in light of what we've learned about eyewitnesses and memory if the goal was actually getting the bad guys.

Yesterday, the New Jersey Supreme Court admitted it.  From the Introduction to State v. Henderson.

In the thirty-four years since the United States Supreme Court announced a test for the admission of eyewitness identification evidence, which New Jersey adopted soon after, a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988).
. . .
After granting certification and hearing oral argument, we remanded the case and appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies. He later issued an extensive and very fine report, much of which we adopt.
We find that the scientific evidence considered at the remand hearing is reliable. That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.
We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures. We now review both sets of variables in detail to evaluate the current Manson/Madison test.

They concluded, not surprisingly, that the test sucks.  And they redid it.  What they came up with isn't perfect, but it's an improvement.  Here's the short version.

If the defendant can find something to point to indicating that the eyewitness's identification was somehow tainted by the authorities or private action, the court is supposed to hold a pre-trial hearing on admissibility.  At the hearing, the state has to "offer proof" that the identification is reliable.  But the defendant has to actually prove that it was unreliable.  The final step is the real problem

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence.

Frankly, that may not be much of a bonus.  The devil isn't in the details, it's in the outline.  Depending on how the courts end up applying that formula (and I'm not holding my breath), it's an invitation to say

Well, yeah, but "very substantial likelihood"?  I don't think so.

You know, the old balance.  The state comes up with its bullshit evidence and the defense proof is just, not quite enough to overcome close enough for government work.

Still, what the court is to consider is very good, and if the court does admit the identification, it's supposed to tell the jury all the reasons not to take it seriously.

On the one hand, the court expanded the list of things cops can do that are improperly suggestive - even recognized that the list is incomplete.  That's valuable, although New Jersey police had already adopted better practices than most of the nation used.

On the other hand (both hands are pretty good in this case), the court then gave a

non-exhaustive list of estimator variables to evaluate the overall reliability of an identification and determine its admissibility.

That is, the court said that all these things (and others too) can screw up an identification all by themselves.  Here's the list they gave.

1. Stress
2. Weapon focus.
3. Duration.
4. Distance and Lighting.
5. Witness Characteristics.
6. Characteristics of Perpetrator. 
7. Memory decay.
8. Race-bias.
9. Opportunity to view the criminal at the time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the criminal.
12. Level of certainty before receiving any feedback or other information.
13. The time between the crime and the confrontation.

Some of these are pretty obvious.  Some less so.  And, again, the court recognized that the list is both incomplete and will need to be adjusted as we learn more about memory and perception.  

They could have gone further.  They could have said (and frankly should have) that any identification that isn't obtained following best practices should be tossed as unreliable.  They chose not to do that because, gee, then some criminals would get off.  Which is true.  And some innocent people wouldn't be charged or convicted.  Which is also true.  But there's that thing about breaking eggs to make an omelet.

Still, it's no small thing to ensure that the jury is told.  And it's certainly no small thing to try to develop procedures based on actual information rather than feel-good-tough-on-crime assumptions.

The above factors are not exclusive. Nor are they intended to be frozen in time. We recognize that scientific research relating to the reliability of eyewitness evidence is dynamic; the field is very different today than it was in 1977, and it will likely be quite different thirty years from now. By providing the above lists, we do not intend to hamstring police departments or limit them from improving practices. Likewise, we do not limit trial courts from reviewing evolving, substantial, and generally accepted scientific research. But to the extent the police undertake new practices, or courts either consider variables differently or entertain new ones, they must rely on reliable scientific evidence that is generally accepted by experts in the community.

Is this all ideal?  Far from it.  The court admits that few identifications will get suppressed.  It allows juries to hear from experts who can explain why and how for instance, memory can be falsified, but says that it shouldn't be useful (and therefore shouldn't be allowed) most of the time because good jury instructions are better.

Oh, and of course none of this will help anyone (except Henderson and Chen, who's got a companion case) who's already gotten fucked.  We can't, after all, just go around fixing the prospect of having convicted the innocent.

So it ain't perfect.

But it's a step. A big one, really.  

And one that may have some legs outside the Garden State.  From the Times.

In its ruling, the court cited findings by Brandon L. Garrett, a law professor at the University of Virginia, who documented in a recent book, “Convicting the Innocent,” eyewitness misidentifications in 190 of the first 250 cases of DNA exoneration in the country.

Professor Garrett said the decision would provide a model for legislatures and courts around the country that “have been at a loss for what to do” and needed “a structure for how judges should handle identifications in the courtroom.”

That's from a professor.  Here's from practice:  I've heard already from a couple of lawyers around the country that they are giving the opinion to judges in their cases (in one case to an appellate court) in the effort to help their clients.

Reality-based thinking

So the House Judiciary Committee released thousands of pages of documents (here and here and here and here) regarding the decisions to fire U.S. Attorneys in 2006. which reveal that Karl Rove in particular and Harriet Miers and the White House generally were far more deeply involved in the decisions to fire U.S. Attorneys in 2006 than they'd previsouly admitted. And, the documents show, at least some of the motivation was purely political.

As Claude Raines might put it, I'm shocked, shocked.

The Justice Department is looking into whether we illegally tortured prisoners at Gitmo or elsewhere. But althogh waterboarding is torture, we're not concerned about that because now-Professor John Yoo said it was legal. Ditto, for extraordinary rendition. Warrantless wiretaps. Indefinite detention. (Oh, wait, we actually endorse that.)

While the Republicans are screaming about how Obama wants to take over health care and decide who gets to live and who must die, the administration is cutting back room deals with the pharmaceutical industry.

The President gets a chance to nominate a Supreme Court justice, and though the Democrats have the votes in the Senate to confirm anyone they like - including someone who's at least marginally honest - either the candidate herself or her handlers in the administration insist that she present herself as more rigidly conservative in her judicial philosophy than either Bush II appointees - Roberts or Alito.

Meanwhile, only 53% of Virginians agree that Obama was born in the United States and is, therefore, constitutionally qualified to be President. And Virginians are actually pretty trusting for southerners. The polling data shows that only 47% of southerners believe Obama was born here. Of course, some of those are Democrats. Among Republicans, 28% are sure he's not from this country while 30% just don't know.

And don't get me started on creationism.

An old professor of mine, paraphrasing a line attributed to Mark Twain, said that a lie can travel halfway around the world before truth has time to put its britches on. I've noted before that anyone can start a blog and mouth off. The problematic part is that, it seems, just saying it is enough. It's on the internet, so it must be true. Unless you disagree, in which case it's obviously false.

The problem is that reality is a whatever-that-might-be sort of thing.

Science tells us that what we do, our industrialization, burning fossil fuels, clearing forests, polluting the atmosphere, leads to global warming. But if you don't believe in science, if you see the work of scientists as no more reliable than the work of alchemists, then why believe such nonsense? And, more importantly, why act on it?

And why should we believe the scientists? Why not take the Biblical story of creation (or at least one version of it, since there are several) as literal truth? The earth is some 7,000 years old. The evidence to the contrary is either misunderstood or was planted by god to test us. Or something. Why not?

Ohio law includes what's known as the "Physical Facts Rule." The Rule was adopted in 1975 and says that

testimony of a witness which is positively contradicted by the physical facts cannot be given probative value by the court.

That's so obviously correct that you have to wonder why most states reject the rule. Yes, that's right. In most states the witness may be believed when he says that he could see through the brick wall. Or maybe the surprising part is that Ohio has joined the minority of states that accept the rule. Reality reigns.

So, next time you're called for jury duty, try telling the one certain truth and see what happens. Gee, your Honor. Unless what the witness says contradicts the laws of physics, there's no way to tell who's speaking the truth and who isn't. Only the physical facts rule applies. And maybe not even that.

Round up the usual suspects.