Freak Show

I don’t know anything about the case, not even the name of the Defendant.  But I think somehow we have crossed a line, where court proceedings have degenerated into theater.  Very poor theater:

I guess the woman was claiming self-defense.  The jury must have rejected that defense, no doubt having been assailed with gruesome photos of the decedent.

The judge is so out of line.

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Large Hadron Collider: Science Or Mysticism?

Now, look.  We know virtually nothing about quantum physics and whatnot.  And so we have an open mind, and $3 billion doesn’t seem like a lot of money for a facility and project like the Large Hadron Collider.

Have at it, we say.  And it certainly looks way cool:

LHC

But the whole thing doesn’t sound so much like “science” as some weird 21st century form of mysticism:

Our guide introduced herself as a researcher of dark matter. Like a United Nations for science, more than 10,000 researchers from over a hundred countries work at CERN. They are collectively tackling questions like: What is the universe? What is it made of? How did we come about? How did life begin? How does it work?

As we said, we’re open minded.  But when “science” expressly endeavors to exceed its traditional boundaries there is cause for skepticism, and maybe even a little concern:  We wouldn’t be the first:

Prometheus was also a myth told in Latin but was a very different story. In this version Prometheus makes man from clay and water, again a very relevant theme to Frankenstein, as Victor rebels against the laws of nature (how life is naturally made) and as a result is punished by his creation…Prometheus became a figure who represented human striving, particularly the quest for scientific knowledge, and the risk of overreaching or unintended consequences. In particular, he was regarded in the Romantic era as embodying the lone genius whose efforts to improve human existence could also result in tragedy: Mary Shelley, for instance, gave The Modern Prometheus as the subtitle to her novel Frankenstein.

The question “What is the universe?” isn’t really different in substance from “Why is there something rather than nothing?”  The latter has traditionally been the concern of philosophy, not science.  The former is just a science-y way of putting it.

Perhaps all areas of inquiry run out to their extremes….meet.  Do you think CERN would give us $3 billion or so to test that hypothesis?

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Completely Unjustifiable

We’ve gone over this before, the double standard between deference to jury determinations depending on whose ox is being gored:

There are some out there who are old enough to remember when large jury verdicts in personal injury cases were a regular news cycle feature.  But you rarely hear about large jury verdicts in such cases anymore.  The reason is that whereas no judge will interfere if a jury awards too little or zero after a trial, judges are very keen to interfere and “set aside” jury verdicts that they feel are “too high”; and in fact appellate courts more or less mindlessly affirm almost everything that is appealed from lower courts – except unusually high jury verdicts in personal injury cases.  Those are routinely overturned.

But this is really, really too much.

It is so illustrative.  $36 million is a lot of money, of course.  At least for most people, in most contexts.  But in the grand scheme of things?  It’s comparable to the size of an annual budget for a small town.  In other words, it’s not really an amount of money that should generate a lot of interest in an appellate court, if indeed courts should be noticing that at all.

And it wouldn’t, except for the fact that the status differential in this case is too big, and the transfer of wealth is too dramatic, which also shouldn’t matter.  But does.*

Anyway, what struck us about this particular case is that it’s simply unwarranted tinkering with the amount a jury awarded, based on nothing at all other than some judge’s unarticulated feeling that the jury shouldn’t have awarded so much.

There’s a 7th amendment issue on these kinds of results.

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*  I should qualify that in a large, abstract sense, a transfer of wealth that takes place in a court case is an important part of a court doing its job.  It is frankly admitted, in international law circles, that one of the consequences of the collapse of the rule of law is wealth inequality.  In fact, we think that the case we have posted about here is a great example of how badly our courts are failing in this important public service.

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Touchy-Feely Theism

One of the most stubborn pop-culture canards of the modern era is this frankly unsupportable opinion that whereas atheism or agnosticism is a sober and rational view, theism in the strict sense – that is, a belief that there is a God – is a sub-rational and/or emotional devotion.

Case in point.  With defenders like this, theism certainly needs no enemies:

Rationality is a specialized aspect of the higher brain, but it’s not the end-all and be-all of life as anyone can tell you who has experienced love, music, art, compassion, self-sacrifice, altruism, inspiration, intuition — indeed, most of the things that make life worth living.

More or less conceding the point.  Ugh.

We can’t speak for every religious tradition, but in western civilization the ‘belief’ in God begins with the earliest known Greek thinkers, predating Christianity by centuries.  Without getting into the depths of epistemology – from which no one ever returns – it is fair to say that the existence of a God is inferred from a few self-evident postulates, perhaps chief among them that reason is a more reliable truth finder than empirical observation.  Thus, from this perspective the question: “If God is real why can’t I see him?” is too childish and ignorant to get bogged down with, yet of course that is precisely what happens with atheists.

None of which is to say that the chain of reasoning that yields the conclusion that there is a God and that God is eternal and maybe a few other attributes beyond that – none of this is perfect.  But so what?  Bring epistemology into that question – or any other, for that matter – and you’ll never reach the bottom.

The point is that within the parameters of the kind of reasoning we do all the time, upon which our very lives depend, there’s a good argument to be made that the existence of God is a certainty, and that argument was actually made centuries ago, long before the Christian religion, to which there is so much hostility, was even around.

It is atheism that requires endless intellectual digressions and contortions just to be plausible.  You might say that it flows naturally from radical empiricism, but that simply proves the point:  there is almost no view of reality less natural – and in many ways frankly stupid – than radical empiricism.  That it has been a popular intellectual affectation for more than a century is a testament not to any compelling claim to empiricism’s truth but rather to the impoverished condition of our intellectual class.

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Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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The Agony Of Being Right

What makes judging so hard?  It’s not the intellectual challenge, of which there is very little anyway.  As we have often said, the law is an intellectually pedestrian subject for the most part, and should be: if it requires high intelligence and a Ph.D to be law abiding, something is seriously wrong.

No, the real challenge is moral.  You need to be able to make people unhappy if doing the right thing requires that.  And then accept that they might be mad at you.  Maybe for a long time.  Maybe irremediably.

One judge who showed great moral courage in the Amanda Knox affair doesn’t feel so much vindicated as sad:

Q: How come you left the judiciary right after that verdict?
Hellmann: I was practically forced to. Our decision was received with reactions of contempt. I can still remember the whistling and the shouting by a claque that had gathered outside the Court house on the evening of the verdict. From the next day I felt surrounded by a growing hostility. In the bars of Perugia they were saying I had sold out to the Americans, that I had yielded to the pressures of the CIA. Tall tales, of course, but what hit me more than the defamatory lynching that lasted years, was the reaction of colleagues in the judiciary. Nearly all of them stopped greeting me. In particular those who in various roles had been involved in the case. I realized that my Court had been a lone voice in a Courthouse where all the judges, starting with the GUP (Judge of the Preliminary hearing) up to those of various review courts, while criticizing the investigation, had endorsed the charges.

From an interview with Judge Hellman, who overturned the Amanda Knox Rafaelle Sollecito guilty verdicts the first time, published in Italian here.

Sometimes you have to throw down the gauntlet.  And then for sanity’s and safety’s sake you have to accept the personal consequences, some of which can only be ameliorated by resigning, retiring, leaving the country.  That kind of thing.

We know exactly how Judge Hellman feels.

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Amanda Knox – Lessons Learned. Maybe.

The out and out acquittal was quite a surprise to most observers, including us.  We recognized that there were institutional concerns at stake and even sympathized – a little – but held out hope that the Italian justice system could transcend those concerns in the interest of getting it right.

Then that’s what they did.

Well, what’s the spin now?  Actually, we at Lawyers on Strike don’t “spin”.  We’re not being fair to ourselves.

Anyhow.  One lesson is that the pall of suspicion coupled with official accusation is frequently too much to overcome, and the Italian justice system deserves a lot of credit that they were eventually able to overcome it, even if it took seven years, even if the innocent had to go to prison for a time, even if we sat on pins and needles wondering what would happen until the very end.  The Court of Cassation is to be congratulated on the result.  Apparently we will learn their reasoning within 90 days.

Over here we like to think that our British tradition of the “presumption of innocence” is the remedy for the otherwise overpowering influence of the pall of suspicion and official accusation.  But that’s not true, because the presumption of innocence is an illusion almost all the time.  Nobody who is accused is really presumed innocent, either in Italy or here.  Our Supreme Court often cites the presumption of innocence as one of the important safeguards of our system, oblivious to the fact that every trial lawyer knows:  there is no presumption of innocence.  The jury thinks your client is guilty and they will hang a guilty verdict on anything they feel in good conscience they can, and woe unto the defendant that relies on scrupulous consciences in that jury box.

Bringing us to a second lesson:  the burden of proof.  Again, while often cited as yet another safeguard of our system – the idea that the prosecution must prove their case “beyond a reasonable doubt” – this, too, is an illusion.  ‘Some evidence’ is, in fact, enough the overwhelming majority of the time.  And the ‘evidence’ itself can be garbage, like jail house snitch testimony.

The only way to play in our system from the criminal defense side so that it operates with a modicum of integrity is to accept that these two pillars of our system – which Italy explicitly, but probably more honestly, does not purport to have – are a disingenuous mythology our Supreme Court justices can stomach to cite only because not one of them has ever represented a criminal defendant, and only two of them have even tried a case to a jury, in both those cases as federal prosecutors, which is not remotely the same in terms of difficulty.

As an aside, when we have our various official innocence commissions listing the reasons why wrongful convictions occur, such as biased line up procedures, you can bet they won’t talk about the fact that one ingredient of our toxic brew is the ignorance of the actual practice of law at the ‘highest’ levels of the profession.

Books could be written.  Maybe someday they will be.

But moving on.  From an official American point of view the Italian Amanda Knox result is therefore an anomaly:  a system that lacks our vaunted safeguards wound up acquitting in a situation where, had the crime happened here and a jury convicted, appellate courts would overwhelmingly just sign off because ‘actual innocence’ is not a ground for an appellate court to set aside a conviction here – but it is in Italy.

And the fact that it took seven years?  Relatively prompt.  In our system, it’s 11 years and counting to undo a conviction that was proven wrongful before it even occurred:

In my view, the picture that unmistakably emerges from all this is of a judicial system exhibiting terminal and unrecoverable error.  It has self-destructively dismantled its protection circuitry – such as federal habeas corpus – but continues to mindlessly mal-process police and prosecutor input in fail mode, spitting out a distorted version of what gets put in, all mangled up with stray verbiage, but essentially unchanged.  It is now so bad that even when the system knows beforehand that it is committing an unspeakable depredation of an innocent human being, it just goes ahead and does it anyway, and then actually convicts itself – by neither disputing it nor speaking it.

By the way, is it poor form to link back to one of our own posts, and even quote from it?  Maybe sometimes we have said something that bears repeating.  In any case, never mind.

Finally, evidence wise the Amanda Knox case is worth a comparison in another way.  As we tried to point out to many others in an ill-advised and time consuming foray into twitter, this was very much a case of piling bad evidence on top of bad evidence, not one piece of which in the end really proved much of anything beyond a ‘maybe’.  This is a procedure in which a ‘case’ that is complete (excuse me) shit can look strong to the indiscriminate or those who are guilt-minded to begin with* (and if twitter is any indication there are way, way too many of the latter).

But even given all this, it should also be mentioned that it is to the great credit of the Italian officials that their system ultimately sifted through it all, and although there was some dubious evidence handling it does not appear that anyone deliberately fabricated, lied or cheated.

That poses more difficulty than just sloppy reasoning and evidence collection, we’re sure on both sides of the Atlantic.  First, exposing it to begin with is ordinarily impossible; second, once exposed the institutional concerns are just as compelling as the institutional concerns at play in the Amanda Knox matter:  if the prosecutor/police officer is caught lying and cheating, how many times have they lied and cheated?  Do we have to review all of their cases?  How many are there?  How much time, energy and resources will that take?  Will this irreparably damage the image and credibility of the institutions, resulting in widespread loss of confidence and disregard of the law?

Of course although not lightly, ultimately we opt for truth over all institutional concerns, and regard willful denial of the known truth to be the absolute worst possible result both socially and on the individual level.  In the end the institutional concerns are question marks – risks – and maybe we can work through whatever problems we are anticipating.  But the truth is not a question mark, and we must yield to it each and every time it presents itself.  Indeed when the truth presents itself that is a gift, so on top of every other problem we generate by ignoring it we make ourselves ingrates.

We are heartened that the Italian justice system has risen to its task so convincingly.  We dare to harbor the desperate – because informed – hope that our system can do so as well.  We’ll see.

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And, we should add, for some reason to one of our favorite commenters, Jessie, who of course is neither indiscriminate nor guilt-minded.  There’s always an exception, we suppose.

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