Shaken Baby Syndrome

First of all, let me apologize for the long hiatus. A period of intense inquiry into graduate school and Hurricane Sandy are largely to blame...

Over at Slate, Emily Bazelon has an interesting piece about a criminal case in Arizona that has recently been overturned. It seems that the scientific consensus behind what signs and symptoms indicate that has a baby has been shaken has frayed (in some cases, at least). Take a look.

Criminal Law and Science

In Superstition and Force, Henry Charles Lea relates the story of Joannes Demarest, a coroner in Bergen County, NJ in 1767. Demarest and a coroner's jury were tasked with inspecting the body of Nicholas Tuers and determining whether he had been murdered. At the time, a common superstition held that if a murderer were to touch the body of his victim, the corpse would bleed. One of the jury members decided there was nothing to do in this case but submit Harry - a slave and the prime suspect - to this ordeal (commonly known as bier right). The jury member touched Tuers body; nothing happened. When Harry touched the body, though, it bled. Demarest, by his own admission a skeptic, asked for the experiment to be repeated and reported that, upon Harry's touch, the corpse did indeed bleed from its nostrils.

Bier Right (sketch) by Jeno Gyarfas (1857-1925). Taken from Wikimedia Commons.

The use of bier right was not uncommon, nor was it restricted to the 18th Century. Lea mentions a number of examples of bier right that occurred after the Civil War, as well as one case in 1860 where relatives of the deceased begged the coroner to exhume the body so that they might test the guilt of a suspect. Thankfully, their exhortations went unheeded.

Before I lose too many readers, I ought to clarify: I don't mean to make a direct analogy between practices like bier right and the sciences that are currently applied in criminal law. Bier right and other more ancient ordeals were superstitions perpetuated by tradition and religion. These methods were based on a stubborn belief in the supernatural, and, though they persisted for quite a long while, they were critiqued and discouraged even in their own time. In fact, in 1215 Pope Innocent III forbade Catholic clergy from administering the ordeals of boiling water (in which a person would fish around in a cauldron of boiling water for a small stone or ring - their innocence being determined by whether god protected them from severe burns) and hot iron (in which a person would carry red-hot iron for a small number of steps). Historical records indicate that the clergy didn't pay much mind to Innocent III's edict.

Pope Innocent III: thwarted reformer. Taken from Wikipedia.

There may not be a directly analogy between atavistic ordeals - buttressed by blind belief - and modern science, but there is one parallel worth pointing out. Like trials by ordeal, science (as presented in courtrooms) is a form of evidence that refuses doubt. This is true for a number of reasons. The error rates of particular branches of forensic science have never been determined. Juries made up of laypeople (not to mention judges!) may not have the education or training to question the evidence that experts present. Defendants may not be able to afford experts of their own or a lawyer well versed in crossing experts.

Any evidence labelled scientific and any witness admitted as an expert immediately gain serious credibility and value. The failure to interrogate what passes for science in criminal courtrooms puts innocent people in jail and creates (even more) disparate outcomes for poor and rich defendants.

In the coming weeks, I'll be writing a series of articles about different applications of science in criminal law. As a teaser, let me leave you with three links.

(1) An article in the NY Times about "behavior analysis" as practiced by the TSA. 

(2) A piece by NPR's Alix Spiegel about the misuse of the Psychopathy Checklist-Revised (PCL-R), a test designed to diagnose psychopathy that is now used by several states (including California) as a major factor in parole hearings.

(3) David Grann's tragic article about Cameron Todd Willingham and the role that arson investigators played in his wrongful conviction. If you're going to click one link, choose this one.

Thanks for reading.

J

Taken from Cameron Todd Willingham - Innocent and Executed.

Confidential Informants

Over at The New Yorker there's an incredible article by Sarah Stillman about the use of young confidential informants by Narcotics Units. The piece highlights the tragic human cost of a system characterized by misaligned incentives and a paucity of oversight. The silent question that haunts the heartrending stories Stillman tells is 'what did these people die for?' The American war on drugs is expensive, consuming dollars and lives on an astounding scale, and its value is (at best) unclear, particularly when one examines the effect of decriminalization policies that countries like Portugal have put into place.

Brown v. Plata, Part II

On Saturday, the NY Times published an op-ed about the current state of California's effort (or lack thereof) to meet the mandated population limit affirmed by Brown v. Plata. Interestingly, the article mentions a movement to reform the state's three strikes law. The proposed changes would prevent harsh sentences like the one handed down in Ewing, where a defendant was given 25 years to life for stealing $399 worth of golf clubs.
 
I apologize for last week's brief hiatus. There should be one or two more extensive posts up by next Monday.

Thanks for reading.

J

Russian Hooliganism

In February, three members of Pussy Riot, Moscow's most famous (only?) feminist punk band, were arrested after they snuck into the Cathedral of Christ the Savior in order to perform in front the church's holy doors. The band later released an anti-Putin music video that featured snatches of the incident confusingly spliced with footage from another church (there are four women in the latter recording). Last Friday, those three women were convicted of hooliganism and sentenced to two years in a penal colony. There's been a great deal of commentary already, including an excellent article by Simon Jenkins in The Guardian that highlights how hypocritical Western critiques of Russian criminal justice practice are. Jenkins focuses mostly on the UK, and I thought that subjecting the USA to similar scrutiny might prove edifying.

Moscow's Cathedral of Christ the Savior. Taken from Eye Flare.

The women were charged with hooliganism: "a gross violation of the public order which expresses patent contempt for society, attended by violence against private persons or by the threat of its use, and likewise by the destruction or damage of other people's property [1]." As many observers have noted, the prosecution's account of the incident appears facially insufficient; the facts simply don't support the charge [2].

The case and its outcome were disturbing for three main reasons: (1) the weakness and corruption of Russia's judiciary, (2) the criminalization of free speech, and (3) the harshness of the sentence. These issues are not unique to Russia; they exist in the United States, too.

As noted above, the prosecution's case was facially insufficient, and yet, the judge (presumably bowing to political pressure from the Kremlin or Russian Orthodox Church) found the defendants guilty. Judges in the United States are less likely to bend the law in such an obvious way, but they are not insulated from political pressures, and often knowingly contravene statutes. Outside of the federal system, many judges are elected (in fact, 32 states elect the judges that sit on their highest court), and these elections open the door to improper influences [3].

Power is not life's only temptation; American Judges have also been seduced by money. In a recent scandal, two Luzerne County (PA) judges were found guilty of conspiring with for-profit juvenile detention centers. The judges would deny defendants counsel, find them guilty, and sentence them harshly in order to keep facility beds full [4].

Even when judges have no clear motivation, they will violate the law or interpret it incorrectly. A recent report on the Orleans Public Defenders office found that Criminal District Court judges often block a defendant's access to OPD's services if the defendant manages to make bail (i.e. the judges assume that if someone can pay bail they can afford legal services). CDC judges are also notorious for their liberal use of contempt citations; defense attorneys have been held in contempt for innocuous deeds: talking to a child witness or "asking a particular question on cross-examination [5]."

New Orleans Criminal District Court. Taken from The Lens.

America's criminal justice system also often violates the right to free speech. The Occupy Wall Street protests that began last September testify to the restrictions local governments in America place on political action. In July, the Protest and Assembly Rights Project released Suppressing Protest, an examination of ways in which political speech was silenced and punished in New York during the Occupy protests [6]. The report details (among other things) instances of unnecessary force, obstruction of the press, "baseless arrests," "closure of public spaces," and "dispersal of peaceful assemblies." Police and prosecutors in New York used broad criminal laws like disorderly conduct to chill speech. Admittedly, sentences for these violations were far more lenient than the one handed to the women of Pussy Riot (many cases were adjourned in contemplation of dismissal), but that doesn't change the fact that protesters were arrested while exercising their First Amendment rights.

Taken from ABC News.

The enactment of laws that explicitly prevent speech is an equally disturbing American trend. On August 6th, President Obama signed a new law that prohibits demonstrations within 300 feet of military funerals (the demonstrations also must be held either two hours before or after the burial). The law is designed to prevent the Westboro Baptist Church from holding their repulsive rallies - a goal with much (bipartisan!) support. It's important to understand, though, that there are - in all likelihood - a substantial number of Russians who are as disgusted by Pussy Riot's stunt as many Americans are by Westboro's hurtful tactics.

It's not only the federal government; a number of states have criminalized political speech, too. Over the last 20 years, Iowa, Kansas, Montana, North Dakota, and Utah have all enacted "Ag-gag" laws. In Kansas, Montana, and North Dakota these statutes criminalize the production and distribution of unauthorized pictures, videos, and audio recordings taken in an "animal facility [7]." In Iowa, it is a crime to fraudulently gain access to an animal facility (i.e. by lying on a job application or in a job interview) [8]. Ag-gag laws are designed to criminalize the exercise of speech. The laws explicitly prevent the production of material that will be used for political purposes, or criminalize ways in which activists gain access to animal facilities, stymieing the process by which the materials are produced.

An animal facility might allow the production and distribution of this picture. Taken from Fatback DC.

The harsh sentences handed down to the members of Pussy Riot also provoked condemnation. Two years in jail for something that (arguably) ought not to be criminalized is bad, but compare that to the sentences which result from three-strikes laws in America: 25 years to life for stealing $399 worth of golf clubs (Ewing v. California) or life imprisonment for forging a check worth $88.30 (Bordenkircher v. Hayes)[9].

The truth is that all nations have imperfect criminal justice systems. It's inspiring that injustice in Russia has spurred such close attention and strident criticism, but we must recognize that Moscow's ugliest judicial tendencies exist in America and - if we are incensed enough - work to change that.

Thanks for reading.

J







[9] In this context, it is mind-boggling to think that Anders Breivik will spend 21 years in jail for killing 77 people.

Alan Lomax at Parchman Farm

Earlier this year, much of Alan Lomax's life's work was placed online.

Lomax was one of the 20th Century's most prominent collectors of folk music. He started recording American musicians in the field with his father in 1933 for the Archive of American Folk Song at the Library of Congress. This project continued until 1942, and the material gathered over those nine years includes famous sessions with Jelly Roll Morton, Muddy Waters, Woody Guthrie, and Lead Belly. Unfortunately, those are not the recordings that are now available gratis. It turns out that the best things in life are sometimes owned by the federal government and, inexplicably, only available from small independent record labels for an extortianate sum.

In 1946, Lomax began recording on his own using tape (rather than aluminum and acetate discs), and he continued into the 1990s, traveling the world in order to preserve aural traditions. This later set of recordings, 17,400 audio files in all, is the collection that has been digitized and made available by the Association for Cultural Equity.

Alan Lomax at the 1979 Mississippi Delta Blues Festival in Greenville, Mississippi. Photo by Bill Ferris, from the William R. Ferris Collection.Taken from Field Trip South.

During 1947 and 1948, Lomax recorded the inmates on Parchman Farm. Parchman, as I've discussed below, was an infamous prison plantation. Convicts were forced to work, and the labor conditions inside the prison were largely indistinguishable from slavery. In order to pace their work, the inmates would sing. And the songs were good. Lomax observed, "I had to face that here were the people that everyone else regarded as the dregs of society, dangerous human beings, brutalized and from them came the music which I thought was the finest thing I’d ever hear coming out of my country.[1]"

While researching Parchman, I came across an album of songs from the 1947-1948 recording sessions that had been released in 1997. All of the music was wonderful, but one song haunted me: Jimpson's rendition of "No More, My Lord." Jimpson isn't exactly as well known as Lead Belly, but you may have heard his voice without realizing it. A version of "Murderer's Home," sung by Jimpson, is featured on the Gangs of New York soundtrack. To listen to any of these songs, just visit the Association for Cultural Equity's sound recording home page, and use the search bar on the right to look for music by Jimpson.

"No More, My Lord," is a fantastic song in its own right, but what I really love is a moment specific to the second recording that Lomax made. Most of the way through the two minute track, the usual axe-stroke beat is followed by syncopation: two unexpected strikes. During the song, Jimpson is actually chopping wood. The surprising percussion is a wood chip striking Lomax's microphone and rebounding off of it.

Those two small beats encapsulate, in many ways, what I love about recordings of live music. Studio albums, as sanitized as they tend to be these days, are not linked with specific times and places. In some ways, this is an advantage: a listener can, by playing an album obsessively (as I tend to do) associate the music with anything (this can lead to some odd connections; The Lord of the Rings will forever be linked with Radiohead's Amnesiac in my mind). On the other hand, live recordings, and this is particularly true of the best of them (Jimi Hendrix at the Monterey Pop Festival or The Band at Winterland in '76), evoke a specific time and place.

The wood chip striking Lomax's microphone draws the listener, however subtly, into the world of Parchman Farm, where the music is always undergirded and overshadowed by brutal force and its effects. Because Jimpson sings the blues, the disturbing power relations that form the song's context do not distract from its beauty and emotional impact; they amplify them. The pain that forms the basis for Jimpson's music - the pain that the music is meant to assuage - is, by accident, made manifest to the listener.

The other reason I love that moment is that it sounds good. That flying piece of timber may have been a mistake, but it was a felicitous mistake: the beats fit the song. I find this example of contingent beauty comforting; I hope that moments like these were plentiful at Parchman, and helped to soften the Sisyphean existences of the men who worked there.

Thanks for reading.

J

Zeitoun

 I awoke last Friday and saw this article in the NY Times.

Abdulrahman Zeitoun, hero of an eponymous book by Dave Eggers, had been arrested in New Orleans for allegedly attempting to arrange the murder of his ex-wife and two other people.

Photograph: Julie Dermansky/Polaris. Taken from The Guardian.

I'm ashamed to say that I've never read Zeitoun, despite my interest in criminal justice and the fact that I spent a year living in New Orleans. The news still shocked and fascinated me, though. More than anything, it drove home the simple point that people are complicated - a reality that our criminal justice system often ignores. Defendants are almost never permitted to present information that allows the court to consider them in toto (if such a thing is even possible). The major exception is during the mitigation phase of capital cases [1]. 

After finishing the piece, I recalled an interview I had had with the Committee for Public Counsel Services. It was spring of my senior year; I desperately wanted to be an investigator at a public defender's office, but I had absolutely no idea what I was doing. One of the attorneys interviewing me asked what should have been a softball question: why did I want to defend people? I gave some convoluted answer about fairness, the necessity of a zealous defense, and bloated prison sentences. The attorney interrupted my rambling thought with a question: did I think that good people could do bad things? It was only after I left the interview that I realized how incomplete this justification was.

In his life, Zeitoun has helped save lives and, perhaps, endangered them. What does that make him on the balance? If our actions define us, how do we balance good and bad deeds; how might we compare them? Does Zeitoun consider his own actions consistent?

If anyone wants to really delve into a mind-bending example of this sort of quandary, I'd recommend listening to the Fritz Haber section of Radiolab's The Bad Show.

Thanks for reading.

J