GUILTY - Beyond a Reasonable Doubt

This posting is based on a presentation given to the Philosophy Club, The Villages, FL, on 26 August 2011.

The PowerPoint slides may be downloaded here.

WHAT IS THE STANDARD OF JUSTICE?

In CIVIL cases, where one person or organization is suing another, the standard is Preponderance of the Evidence, meaning that the winning side must tip the scale of justice by at least a little bit.

In CRIMINAL cases, where The State charges an individual, the standard is much higher. It is Beyond a Reasonable Doubt, meaning The State has a very high burden of proof, reflecting the seriousness of the charge and the potential punishment.

In the past, the phrase "and to a moral certainty" has been used, but it is no longer used in NY and NJ and some other states because it is "outdated and potentially confusing". Indeed, some people interpret the standard to essentially require that the judge and jury find the defendant guilty beyond all doubt, which is an impossible task in many crimes.

According to the Federal Judicial Center:

• Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.

• There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.

• If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.

• If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

JURY ERROR

In the well publicized OJ Simpson and Casey Anthony cases, many of us think the jury acted in error in finding the defendants not guilty.

OJ was rich enough to hire an excellent defense team. His celebrity and race appears to have led to what is called "jury nullification" where evidence is ignored in favor of some higher considerations. In this case, it was an ill-considered effort to correct past and ongoing discrimination by the US justice system against poor people in general an African-Americans in particular by releasing a rich man who, despite his race, has done very well in our country.

Casey Anthony, on the other hand, was neither rich nor black, but she was young and (to some) good-looking, and the unusual nature of the crime she was charged with and her bizarre actions after the death of her daughter attracted media attention. The State (IMHO) over-charged her by going for first-degree murder. No one (but Casey) may ever know exactly what happened, but I believe she was not guilty of pre-meditated murder but only of horribly negligent actions that led to her daughter's demise. I think she over-medicated the child with chloroform, to quiet her so she would be free to go out on the town.

THE "CSI" PROOF PROBLEM

Part of the problem is the unreasonably high level of expectation of proof juries have come to expect based on their experience watching crime programs such as Crime Scene Investigation (CSI) on TV. In many of those programs, the evidence is solidly physical and overwhelming. Juries therefore have a tough time with circumstantial evidence.

ARGUMENTS FOR "LAW AND ORDER" JUSTICE

• If a guilty person is mistakenly acquitted, he or she will likely recidivate and commit further crimes, condemning innocent civilians to becoming victims of crimes.

•Many wrongly convicted defendants have bad past records. They are most likely guilty of something.

• Not-guilty verdicts reduce respect for and fear of the police force, and thus are detrimental to public safety.

ARGUMENTS FOR MORE CAUTIOUS AND LENIENT JUSTICE

• If an innocent is wrongly convicted,then the cops stop looking for the actual criminal. He or she is still free, posing a danger of further crime.

• A guilty person mistakenly acquitted is likely to be re-arrested for further crimes and eventually will be jailed, and justice done.

» A guilty verdict in a highly charged case (e.g., O.J. Simpson) may cause riots. Better to let one killer go free than to have more innocents die.

• Many defendants are poor and have been abused by their families and society. Their crimes are a cry for help. Forgive them!

• A guilty person may escape justice on Earth, but will be severely punished in the afterlife. God’s justice will be done.

CRIMINAL RECIDIVISM STATISTICS

Within six years of release, after serving their term in prison, over 70% of convicted criminals will be arrested for a crime, and an astounding 50% will be convicted of another crime. Recidivism rates are higher for those released at younger ages. Thus, given that convicts have high recidivism rates, it stands to reason that criminals who get away with their crimes (either by not being arrested or, if arrested, being found not guilty by the jury), will have even higher recidivism rates since they are generally younger.

The graphic at the head of this posting shows the consequences.

1) Given ten murderers in a community, there are likely to be about twenty victims (since many murders involve more than one victim).

2) Violent crimes tend to be cleared by arrest at a rate of about 60% for murder. (Other violent crimes have clearance rates that are much lower, such as about 25% for rape. Non-violent crimes have even lower clearance rates, below 20% for theft and burglary.)

3) Thus, only about six of our ten murderers will be arrested and charged. Conviction rates are about 80%, so only about five of those six charged will be convicted and jailed.

4) This failure of justice leaves five murders out on the street, and they are likely to commit an additional ten murders.

5) Furthermore, when the jailed murders are released after serving their sentences, come of them will likely recidivate, leading to even more dead people.

Please consider the above if you even have the opportunity to serve on a jury!

Ira Glickstein

Runaway Trolley - Applied to End of Life Issues

The Runaway Trolley thought experiment was introduced in a previous Topic, on this Blog.

The basic lesson was that there are situations where it is quite ethical to take an action that saves (or benefits) a number of people, even if that action has, as an inevitable side effect, the death (or detriment) of a smaller number of people.

This posting has to do with End of Life Issues, and how we might apply the lesson of the Runaway Trolley to the public-funded medical care system. An earlier posting related the Runaway Tolley to Criminal Recidivism

POWERPOINT SHOW AVAILABLE

Click HERE to download a narrated PowerPoint Show that includes animated charts for the Runaway Trolley thought experiment. After the Runaway Trolley is explored, the charts continue and apply the ethical lesson to two real-world issues: 1) Criminal Recidivism and 2) End of Life Issues. The PowerPoint Show is based on a talk I gave to The Philosophy Club at The Villages, FL, on 04 February 2011. NOTE: The Powerpoint Show is Narrated and plays and advances automatically after download to your computer.

PRESIDENT OBAMA'S VIEWS

President Obama, in a moment of unusual candor, expressed his views on end-of-life health care for those with chronic or terminal illness, published in the New York Times Magazine in April 2009. (full text from NY Times website, see section V). I have reproduced the text of that section at the end of this posting. [Some material here is from my earlier posting END-OF-LIFE: Honest Brokers (not Death Panels :^)]

DIRECT OBAMA QUOTES

“… government can … be an honest broker in assessing and evaluating treatment options. … when it comes to Medicare and Medicade, where the taxpayers are footing the bill …

“… using comparative-effectiveness studies as a way of reining in costs, …

“… the chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here. …

“…there is going to have to be a conversation that is guided by doctors, scientists, ethicists. … you have to have some independent group that can give you guidance.”

PRESIDENT OBAMA'S GRANDMOTHER

As a case-in-point, the President brought up the hip replacement received by his terminally-ill grandmother mere weeks before she passed away. During his campaign, she was diagnosed with terminal cancer and then, probably due to a mild stroke, she fell and broke her hip. Her condition was analyzed by her doctors who told her she had three to nine months to live due to the cancer. They also told her that a weak heart posed risks for the invasive surgery hip replacement.

In the absence of cost-effectiveness data or guidelines to the contrary, she chose the hip replacement, which was approved by Medicare and done mostly at public expense. She passed away two weeks later, sadly just days before Obama won. It appears the stress of the operation may have shortened her life by several months.

I don't know if Obama's grandmother got approval for the hip replacement because she was related to a prominent person. That would be bad enough, but it would be even worse if we are giving hip replacements and other stressful and expensive treatments to all terminally ill grandmothers and grandfathers.


QUOTING THE PRESIDENT AGAIN


"... in the aggregate, society making those decisions to give my grandmother, or everybody else’s aging grandparents or parents, a hip replacement when they’re terminally ill is a sustainable model, is a very difficult question. ... So that’s where I think you just get into some very difficult moral issues. But that’s also a huge driver of cost, right? I mean, the chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here."

QUALITY ADUSTED LIFE YEARS

A concept called "Quality Adjusted Life Years" (QALY) is in use in the UK and, IMHO, should be adapted for use in the US. The basic idea is to estimate, before approving very expensive, public-funded medical procedures, the probability the procedure will be successful, and, if successful, the number of years the recipient is likely to live and the subjective quality of those years.

Subjective quality is a difficult measure. Fortunately for us, based on experience and practice in the UK and elsewhere, there are fairly well-established guidelines. For example, mobility is an issue in quality of life. If a person is able to walk without assistance that is better than being wheelchair-bound, and a wheel chair is better than being bedridden. Being alert and awake and mentally competent is better than lack of those qualities. Being able to take food by mouth is better than IV, etc.

In the UK, if each QALY is estimated to cost less than about $40,000, and if the recipient wants the medical procedure, it is approved for public funding. On the other hand, if the cost is more than $40,000 per QALY, or if the recipient does not want the procedure, only palliative care, consisting of pain management along with love and attention, is provided, even if this level of care will reduce the likely life span of the patient.

The QALY concept may also be utilized to compare alternative treatment options. For example, if medical treatment procedure A will cost substantially more per QALY than medical treatment procedure B, only B will be approved, even if both are under the $40,000 limit.

Examples:

1) Alice is a candidate for treatment A that is estimated to cost $150K for the treatment and care, has a probability of success of 80%, and, if successful, will provide a subjective quality of life of 60%. Based on her age and medical condition, if the procedure is successful, Alice has a life expectancy of 10 years. The calculation gives her QALY = 5 years, so each QALY will cost about $31,000, which is below the limit of $40,000. The Treatment A is therefore approved for public funding if Alice is willing to accept it.

2) Bob is a candidate for treatment B that is estimated to cost $90K for the treatment and care, has a probability of success of 50%, and, if successful, will provide a subjective quality of life of 40%. Based on his age and medical condition, if the procedure is successful, Bob has a life expectancy of 5 years. The calculation gives him QALY = 1 year, so each QALY will cost about $90,000, which is above the limit of $40,000. The Treatment A is therefore NOT approved for public funding and Bob is entitled to palliative care only.

3) Carl is a candidate for treatment C that is estimated to cost $50K, or treatment D that is estimated to cost $100K.

Treatment C has a probability of success of 90%, and, if successful, will provide a subjective quality of life of 60%. Based on his age and medical condition, if the procedure is successful, Carl has a life expectancy of 5 years. The calculation gives him QALY = 3 years, so each QALY will cost about $19,000, which is below the limit of $40,000.

Treatment D has a probability of success of 80%, and, if successful, will provide a subjective quality of life of 70%. Based on his age and medical condition, if the procedure is successful, Carl has a life expectancy of 5 years. The calculation gives him QALY = 3 years, so each QALY will cost about $36,000, which is below the limit of $40,000.

Both treatment C and D are below the limit of $40,000 per QALY, but C is substantially less expensive and, therefore, only treatment C is approved for public funding if Carl is willing to accept it.

A STORY MY FATHER TOLD ME

Once upon a time, there was a boy in China and he saw his father carrying a large basket on his shoulders. "What do you have in the basket?" he asked.

"Well," said the father, "It is your grandfather."

"What are you doing with grandpa?" asked the boy.

"Well," he replied sadly, "Your grandfather is quite old and he is so sick that we cannot take care of him anymore, so I am going to dump him in the river."

The boy thought about it awhile, and then he said: "OK, Dad, ... But remember to bring back the basket!"

Of course the point of the story is that the boy will learn from his father's actions and will, when the time comes, uses that same basket to dispatch his father.

When my mom's cancer roared up after a year of chemo and radiation, she decided to accept only palliative care. Our family travelled to San Francisco where they lived and said goodby. Hospice provided morphene and a hospital bed for their apartment. We spoke by phone every evening for about a month until she passed away.

My dad made it clear that was what he wanted when the time came.

About five years later he had a stroke and fell and was taken to the hospital where an MRI confirmed a major bleeding in his brain that was terminal. He could not speak or hear or see and was being kept alive with IV hydration and nutrition and oxygen to help his breathing. My brother and I asked the doctors to remove all artificial life support, including the IV and oxygen, and he passed away a few days later.

I have asked my children to do the same for me when the time comes. "Remember to bring back the basket!"

ACT! OR FATE?

If we Accept FATE?

• Do next to nothing to change US health care.


• Health care not fair.


• Given medical advances, End of Life costs escalate out of control.


• Neo-natal care and preventative care are under-funded.


• USA goes bankrupt (like Greece, hedonistic socialism).

If we ACT!

• Enact QALY End of Life guidelines.


• Health care is more fair.


• Given medical advances, End of Life costs are controlled.


• Neo-natal and preventative care are well-funded.


• USA avoids bankruptcy.


• Death with dignity and loving care.

CONCLUSIONS

Although I did not vote for him, and oppose much of his economic policy, I agree with President Obama's remarks on end-of-life treatment.

I wish he and his Democratic allies would be similarly honest and I wish the Republicans who are characterizing the issue as "pulling the plug on granny" would be more thoughtful and helpful and honest as well.

I do not like to hear people call these "honest broker" government medical and ethical tribunals "death panels". However, the 'honest broker" guidelines, when imposed on Medicare and other public-funded medical decisions, will, in effect, cause many of the terminally and chronically ill to be given palliative treatments that will undoubtedly shorten their lives.

Whatever you call them, I believe we need ethical end-of-life guidelines to prevent doctors and hospitals from ordering expensive treatments that are not cost-effective (and that may be done more for reasons of fear of malpractice suits and/or simple greed to increase their incomes).

I am not if favor of further nationalization of US health care. However, with Medicare the primary payer for nearly all of us over 65, we need national guidelines to prevent the program from going bankrupt. (See this and this for more details on my views of what we really need in cost-effective health care reform.)

Let us take the ethical lessons of the Runaway Trolley to heart and ACT! rather than accept the hand of FATE?

Ira Glickstein

PS: For the record, and in case the NY Times takes the page linked above out of their free access, here is the full text of the applicable section of the document from which I quoted Pressident Obama's words.

V. Post-Reform Health care
You have suggested that health care is now the No. 1 legislative priority. It seems to me this is only a small generalization — to say that the way the medical system works now is, people go to the doctor; the doctor tells them what treatments they need; they get those treatments, regardless of cost or, frankly, regardless of whether they’re effective. I wonder if you could talk to people about how going to the doctor will be different in the future; how they will experience medical care differently on the other side of health care reform.
THE PRESIDENT: First of all, I do think consumers have gotten more active in their own treatments in a way that’s very useful. And I think that should continue to be encouraged, to the extent that we can provide consumers with more information about their own well-being — that, I think, can be helpful.
I have always said, though, that we should not overstate the degree to which consumers rather than doctors are going to be driving treatment, because, I just speak from my own experience, I’m a pretty-well-educated layperson when it comes to medical care; I know how to ask good questions of my doctor. But ultimately, he’s the guy with the medical degree. So, if he tells me, You know what, you’ve got such-and-such and you need to take such-and-such, I don’t go around arguing with him or go online to see if I can find a better opinion than his.
And so, in that sense, there’s always going to be an asymmetry of information between patient and provider. And part of what I think government can do effectively is to be an honest broker in assessing and evaluating treatment options. And certainly that’s true when it comes to Medicare and Medicaid, where the taxpayers are footing the bill and we have an obligation to get those costs under control.
And right now we’re footing the bill for a lot of things that don’t make people healthier.
THE PRESIDENT: That don’t make people healthier. So when Peter Orszag and I talk about the importance of using comparative-effectiveness studies (see note below) as a way of reining in costs, that’s not an attempt to micromanage the doctor-patient relationship. It is an attempt to say to patients, you know what, we’ve looked at some objective studies out here, people who know about this stuff, concluding that the blue pill, which costs half as much as the red pill, is just as effective, and you might want to go ahead and get the blue one. And if a provider is pushing the red one on you, then you should at least ask some important questions.
Won’t that be hard, because of the trust that people put in their doctors, just as you said? Won’t people say, Wait a second, my doctor is telling me to take the red pill, and the government is saving money by saying take the blue —
THE PRESIDENT: Let me put it this way: I actually think that most doctors want to do right by their patients. And if they’ve got good information, I think they will act on that good information.
Now, there are distortions in the system, everything from the drug salesmen and junkets to how reimbursements occur. Some of those things government has control over; some of those things are just more embedded in our medical culture. But the doctors I know — both ones who treat me as well as friends of mine — I think take their job very seriously and are thinking in terms of what’s best for the patient. They operate within particular incentive structures, like anybody else, and particular habits, like anybody else.
And so if it turns out that doctors in Florida are spending 25 percent more on treating their patients as doctors in Minnesota, and the doctors in Minnesota are getting outcomes that are just as good — then us going down to Florida and pointing out that this is how folks in Minnesota are doing it and they seem to be getting pretty good outcomes, and are there particular reasons why you’re doing what you’re doing? — I think that conversation will ultimately yield some significant savings and some significant benefits.
Now, I actually think that the tougher issue around medical care — it’s a related one — is what you do around things like end-of-life care —
Yes, where it’s $20,000 for an extra week of life.
THE PRESIDENT: Exactly. And I just recently went through this. I mean, I’ve told this story, maybe not publicly, but when my grandmother got very ill during the campaign, she got cancer; it was determined to be terminal. And about two or three weeks after her diagnosis she fell, broke her hip. It was determined that she might have had a mild stroke, which is what had precipitated the fall.
So now she’s in the hospital, and the doctor says, Look, you’ve got about — maybe you have three months, maybe you have six months, maybe you have nine months to live. Because of the weakness of your heart, if you have an operation on your hip there are certain risks that — you know, your heart can’t take it. On the other hand, if you just sit there with your hip like this, you’re just going to waste away and your quality of life will be terrible.
And she elected to get the hip replacement and was fine for about two weeks after the hip replacement, and then suddenly just — you know, things fell apart.
I don’t know how much that hip replacement cost. I would have paid out of pocket for that hip replacement just because she’s my grandmother. Whether, sort of in the aggregate, society making those decisions to give my grandmother, or everybody else’s aging grandparents or parents, a hip replacement when they’re terminally ill is a sustainable model, is a very difficult question. If somebody told me that my grandmother couldn’t have a hip replacement and she had to lie there in misery in the waning days of her life — that would be pretty upsetting.
And it’s going to be hard for people who don’t have the option of paying for it.
THE PRESIDENT: So that’s where I think you just get into some very difficult moral issues. But that’s also a huge driver of cost, right?
I mean, the chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here.
So how do you — how do we deal with it?
THE PRESIDENT: Well, I think that there is going to have to be a conversation that is guided by doctors, scientists, ethicists. And then there is going to have to be a very difficult democratic conversation that takes place. It is very difficult to imagine the country making those decisions just through the normal political channels. And that’s part of why you have to have some independent group that can give you guidance. It’s not determinative, but I think has to be able to give you some guidance. And that’s part of what I suspect you’ll see emerging out of the various health care conversations that are taking place on the Hill right now.

Note: Comparative-effective studies — which are now done by academic researchers, but not systematically across the medical system — review data to determine which widely used treatments do not improve outcomes and which effective treatments are not used often enough.

Runaway Trolley - Applied to Criminal Recidivism

The Runaway Trolley thought experiment was introduced in a previous Topic on this Blog.

The basic lesson was that there are situations where it is quite ethical to take an action that saves (or benefits) a number of people, even if that action has, as an inevitable side effect, the death (or detriment) of a smaller number of people.

This posting has to do with Criminal Recidivism, and how we might apply the lesson of the Runaway Trolley to the justice system.

POWERPOINT SHOW AVAILABLE

Click HERE to download a narrated PowerPoint Show that includes animated charts for the Runaway Trolley thought experiment. After the Runaway Trolley is explored, the charts continue and apply the ethical lesson to two real-world issues: 1) Criminal Recidivism and 2) End of Life Issues. This posting covers Criminal Recidivism only. A subsequent posting will cover End of Life Issues. The PowerPoint Show is based on a talk I gave to The Philosophy Club at The Villages, FL, on 04 February 2011. NOTE: The Powerpoint Show is Narrated and plays and advances automatically after download to your computer.

WAS MAIMONIDES RIGHT ABOUT CRIMINAL JUSTICE?

Moses Maimonides, the 11th Century Rabbi and medical doctor shown in the sketch above, is one of the most highly regarded ethical teachers in Jewish tradition. He famously wrote that it was better to let 1000 guilty go free rather than wrongly convict a single innocent. Do you agree with that ideal? Is an error rate of 1/1000 the correct standard for a criminal justice system?

Juries in criminal cases are charged with the responsibility to convict only if the evidence meets the standard of being beyond a reasonable doubt. The 1/1000 standard corresponds to a certainty of 99.9%. Is that a good working definition for beyond a reasonable doubt? Is that number too high? For example, in civil cases, the standard is the preponderance of the evidence, which means, if one side proves its case to a certainty of 51%, the other side loses. Is 51% a good working definition for beyond a reasonable doubt?

Well, Benjamin Franklin, US Founding Father, said the number of guilty released to save one innocent from being wrongly convicted was 100, which corresponds to 99%. William Blackstone, the 18th century jurist who codified British Common Law, said the correct value was 10, corresponding to 90% certainty. Benjamin Cardozo, 19th century US Supreme Court Justice, said the number was 5, corresponding to 80% certainty. And, Voltaire, the 18th century French philosopher, said the number was 1, corresponding to 50% certainty.

How in the world can so many respected men have such different standards for criminal justice? How may we use the Runaway Trolley to arrive at a reasonable number?

CRIMINAL RECIDIVISM RATES

The graphic lists criminal recidivism rates for a number of crimes. Notice that nearly all violent crimes, including assault, murder, robbery, and sex crimes have recidivism rates above 50%. That means that, when a person has been convicted of a violent crime and has served his sentence and is released, there is a greater than 50% likelihood that he will commit another violent crime, be caught, and convicted again.

FUTURE VICTIMS CONDEMNED BY FAILURE OF JUSTICE

Criminal Recidivism rates for violent crimes teach us that, every time we release two convicts, we are, in essence, condemning at least one innocent to become the victim of a future crime. The number of innocents condemned is probably considerably larger than one because: 1) Many violent crimes have more than one victim, and 2) The released convict is likely to commit more than one violent crime before being caught and convicted again.

Extending this lesson to criminal trials, if, after weighing the evidence of a violent crime we the jury believe there is a greater than 50% likelihood the defendant is guilty, we should vote him guilty!

If there is only a 51% chance he is actually guilty, and we release him on a technicality or because we feel sympathy for him, and it turns out he was actually guilty, we are denying justice not only to his victims in the current case, but there is a high likelihood we are also condemning future victims to violence.

If we convict him on 51% certainty, and he turns out to have actually been innocent, we are doing a serious injustice to an innocent man. But, what is the likelihood he is totally innocent? Unless corrupt police have purposely framed him (in which case they would most likely have manufactured overwhelming evidence, which is not the case here), we are probably dealing with a person who has an extensive rap sheet and other indicators he has not lead a respectable life. He may not be guilty of this particular crime, but his incarceration will not be much of a loss to society - certainly not as much as the death or serious injury for one or more totally innocent victims if we make a mistake and release someone who is actually guilty.

The justice system is so dominated by lawyers and legal technicalities that rich people with clever lawyers can literally get away with murder, as many of us think happened to OJ Simpson.

RECOMMENDATIONS

1) Reform the Court System. Change the rules of evidence. Make it harder to get off on a technicality or with a clever lawyer.

2) Change the way we handle people convicted of violent crimes. DO NOT release them after their sentence is served. Keep them in some type of work camp.

3) Perhaps modern technology provides a humane and affordable solution for dealing with released convicts and others with extensive rap sheets. Stick a chip up their butt so they may be tracked for the rest of their lives. If there is certainty they will be caught and convicted if they commit any kind of infraction, they may learn to stay on the straight and narrow.

My free online novel, 2052 - The Hawking Plan, envisages a society, several decades from now, when everybody "voluntarily" carries an RFID device that effectively tracks their every move and activity.

Does that sound too drastic? Well how about your total lack of privacy right now? Those of us with homes and computers and cell phones and cars and jobs are effectively tracked by various computers and video cameras as we go on with our lives. We leave video and computer records dozens of times every day. The only people who have any privacy anymore are the drifters and criminal class, one of whom is likely to steal your car or credit card!

NOTE: Subsequent postings in this series will extend this lesson to the real-world situation of End of Life Issues.

Ira Glickstein

Lawyers Have Not Changed Since the 1700's

Our recent discussion of the current movie, The Invention of Lying, about a modern society where there was no concept of a lie, led me back to the story of a similar society, written in 1726 by Jonathan Swift. One of best tales in Gulliver's Travels is his adventure in the country of the Houyhnhnms, a society of cultured horses where lying is also unknown.

I was struck by Gulliver's description of the lawyers of his time and how similar they are to many of today's lawyers (and judges and, especially, professsional politicians)!

Here are some excerpts where Gulliver explains, to his Houyhnhnm host, how justice works in his native England:

There [is] a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid.

To this society [of lawyers] all the rest of the people are slaves.

For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself.

Now, in this case, I, who am the right owner, lie under two great disadvantages: first, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which is an unnatural office he always attempts with great awkwardness, if not with ill-will.

The second disadvantage is, that my lawyer must proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore I have but two methods to preserve my cow. The first is [bribery of] my adversary's lawyer [or] for my lawyer to make my cause appear as unjust as he can, by allowing the cow to belong to my adversary: and this, if it be skilfully done, will certainly bespeak the favour of the bench.

... these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy; and having been biased all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing any thing unbecoming their nature or their office.

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

[Lawyers have] a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide, whether the field left me by my ancestors for six generations belongs to me, or to a stranger three hundred miles off.

[Lawyers and judges,] in all points out of their own trade, [are] usually the most ignorant and stupid generation among us, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession.

Well said and so true, so true!

Ira Glickstein

We Need a Comprehensive DNA Database

A recent TV newsmagazine featured the story of a woman who was raped some 20 years ago, before DNA was generally available to confirm the identity of the suspect. She testified that she carefully observed the facial features of her assailant and helped the police sketch artist make an excellent drawing. She then picked Ronald Cotton out of a photo lineup and later the same guy out of a physical lineup. On the basis of her certain eyewitness testimony, Cotton was convicted and sent to jail.

About 15 years later, another inmate, Bobby Poole, was assigned to the same jail. Poole looked so much like Cotton the guards sometimes called them by each other's name. Cotton appealed for DNA tests against the rape kit that had been preserved by the police. The tests proved Cotton did not do the rape. They also proved that Poole did. Poole was convicted and Cotton was released after spending a decade and a half in jail for a crime he did not commit. Cotton graciously forgave his mistaken accuser.

Cases like this show how unreliable eye-witness reports may be, even if (as in this case) the victim was highly intelligent, took care to be observant, and she and the police and the trial court were totally honest and professional.

According to the TV program, several hundred wrongly-convicted inmates have been released in the past decade on the basis of newly available DNA technology. That is a tremendous stride for justice!

HOWEVER RAPES AND OTHER VIOLENT CRIMES STILL OCCUR

While DNA tchnology is now available to confirm the identity of the rapist if, as in most cases, a DNA sample can be obtained, rapes and other violent crimes continue to occur with disturbing frequency.

The problem is that DNA is used only to confirm identity. The police have to use far less certain, old-fashioned methods to track down the suspect. They must depend upon eye-witness evidence that is known to be unreliable. They depend upon informants who are often criminals themselves and may have their private agendas. They depend upon stereotypes and -lets admit it- profiling based on criminal history, race, age, neighborhood, and gender.

WHAT IF A COMPREHENSIVE DNA DATABASE WAS AVAILABLE?

When an automobile is involved in a crime or an accident and the license plate number is caught on video surveillance or is reported by a witness, it is easy to identify the owner of the car and investigate further.

Wouldn't it be great if this was the case with rapes and other violent crimes?

Violent assailants often leave some bodily evidence (ejaculate, hair, saliva, blood, skin, sweat, ...) on the victim and/or at the crime scene. Given a comprehensive DNA database, it would be almost as easy as looking up a license plate number to finger the suspect!

Yes, a careful and thoughtful rapist could wear gloves and a hairnet and use a condom and require his victim to douche, etc., and that would defeat the DNA ID method in some cases. However, most assailants are not that clever.

OBJECTIONS TO A DNA DATABASE

The only rational objection to a DNA database would come from potential rapists and other criminals who don't want to be caught - and their criminal defense lawyers who like a steady income - often paid out of public defender tax dollars.

Yes, there is the issue of "privacy". Many people do not want their DNA (or fingerprints) on file at the FBI or other police agency because they are worried about how such identifying data might be used by a rogue government cracking down on dissidents or other non-favored individuals.

That is not a worry for me. I quite willingly had my fingerprints taken as part of a security check to allow me to work on classified military projects. As far as I know, my fingerprints ar still on file at the FBI.

In any case, for most of us who have a well-documented and fixed place of residence, families, employers, sources of income, bank accounts, credit cards, cars, and so on, we are easily found. Those of us who keep our cell phones on at all times are leaving computerized records of exactly where we have been, minute by minute, every single day. The only people who may benefit from "privacy" are the homeless and jobless, and the criminals who may commit crimes while using YOUR stolen car or cell phone or credit card or identity!

Another issue, more serious, is the possible use of a DNA database to identify individuals who may be susceptable to certain genetic diseases, and the possible use of that information by health insurers to refuse coverage or charge a higher premium. (As a utilitarian, I see nothing wrong with the current actuarial system where young men pay higher auto insurance rates, smokers higher health premiums, people living in wooden houses higher fire insurance, those in tornado alley higher storm insurance, and so on based on demonstrated risk levels. Unfortunately, health insurance seems to be moving into a different category even for illnesses that are mostly self-inflicted due to smoking, drinking, or over-eating.)

The genetic ID objection may be dismissed easily. DNA has sufficient markers such that those associated with genetic deseases may be eliminated from the DNA record stored in a comprehensive database. There are plenty of DNA markers available without getting into medical risk levels.

COLLECTING DNA IS EASY

When my son-in-law and I were teaching classes at Brandeis Summer Odyssey several years ago, he wanted his students to do a DNA project. The administrators would not allow him to take samples from students, who were minors of high school age, so they took samples from faculty members, including me. All I had to do was touch the inside of my cheek with a q-tip. Very easy and rapid. The students ran the sample through DNA testing equipment my son-in-law obtained from Harvard University. DNA samples could easily be taken at Motor Vehicle Departments when new driver's licenses are issued. They could also be taken at high schools as part of the driver's ed class.

Ira Glickstein

Empathy and the Court

[From Joel] President Obama's selection of a person who he judges will have the proper "empathy" brings up an interesting point concerning the evolution and philosophy of law. The history of law is one in which individual cases were decided one by one by the ruler or his designate based upon subjective conditions. The rightness or wrongness of a certain action was unpredictable, because there was no fixed code.

Hammurabi's law code, the first written code of laws in human history, marked a breakthrough in the concept of justice. Later on the concept of precedents limiting the latitude of judges to decide as they saw fit, gave us a government of laws not of men.

Theoretically, empathy and sympathy only enter into the penalty phase in the form of "mitigating circumstances" except for the situation in which the jury illegally ignores the law.

The notion that a supreme court justice is to empathize with the individuals or individual involved in a case before it, seems a strange concept , since cases become precedents. It leaves us with a situation in which the law loses one of it's most fundamental characteristics, that of reliability. For every case that is brought to court there are probably hundreds that are prosecuted (or not) at the local level based upon templates previously established by the supreme court. For every case prosecuted or not there are thousands of ordinary people and businesses who govern their behavior based upon these templates.

How is our massive society to function if we revert to an empathetic "Solomon the Wise" approach to justice?

-Joel

Christmas, Santa, and the Spirit of Giving

Warmest Christmas greetings to friends of the Blog who rejoice and remember the birth of Jesus Christ.

And to all who have received or freely given help for the sheer joy of it! Literal believers or not, we all - if we are human - know the pleasure of helping others, particularly when we don't have to.

Perhaps the most famous editorial in the history of newspapers appeared in the New York Sun 110 years ago:

Virginia, your little friends [who say say there is no Santa Claus] are wrong. They have been affected by the scepticism of a sceptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men's or children's are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. ... The most real things in the world are those that neither children nor men can see. ... Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives, and he lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, he will continue to make glad the heart of childhood.

The full text of the editorial is available at: http://www.stormfax.com/virginia.htm

Ogden Nash captured the folly of disbelief in the spirit of giving in his famous poem The Boy Who Laughed at Santa Claus. Jabez Dawes makes a startling claim:

'Sure as my name is Jabez Dawes
There isn't any Santa Claus!'...

'Jabez' replied the angry saint,
'It isn't I, it's you that ain't.
Although there is a Santa Claus,
There isn't any Jabez Dawes!'...

No trace was found of Jabez Dawes,
Which led to thunderous applause,...

From grimy feet to grimy locks,
Jabez became a Jack-in-the-box,...

All you who sneer at Santa Claus,
Beware the fate of Jabez Dawes,
The saucy boy who mocked the saint.
Donner and Blitzen licked off his paint.

The full text of the poem is available at: http://www.westegg.com/nash/santa.html

Tzedakah is the Hebrew word for charity, rooted in justice and righteousness. Maimonides suggested a hierarchy of tzedakah, where the highest ideal is to offer a fellow human what we would call "a hand up" - giving him or her what is necessary to become independent and self-supporting. That could be education, a job, a business partnership or a loan - anything that helps without shaming the recipient.

How to give tzedakah? If possible, it is best when the giver does not know the recipient and vice-versa. At a lower level, the giver is anonymous but knows the recipient. At the next lower level, the recipient knows the giver but but the recipient is anonymous. At a still lower level, the giver and recipient know each other, but the gift is offered without being requested. Finally, there is the gift given after being requested.

Ira Glickstein