Monthly Archives: February 2010

A Bright New Idea From the Change-Master

I guess it’s change of a sort.

Obama’s healtcare reform started as a beautiful vision of low-cost healthcare for everyone. I thought that was highly unrealistic, but at least it was clear and straightforward.

I guess the Democrats thought it was unrealistic too, because the Democrats soon made a series of compromises and turned it into a plan that purporte to give us all healthcare through the dubious method of requiring all of us to buy health insurance. Worse, it required us all to buy the same kind of health insurance. Those who preferred high-deductible health insurance were out of luck.

Of course, since it makes little sense to require poor people to buy health insurance they can’t afford, they were to be provided with subsidies. Given the other elements of the healthcare reform bill, this was a fairly sensible thing to do. Then, for some reason—I can only guess class hatred—it was decided that people who already had very good health insurance plans were going to be taxed extra. But, in a craven political move to buy support from unions, their members were given a break on the tax for their healthcare plans.

That’s about as far as it got by the end of last year, when the healthcare reform mess seemed to fall through…until now. This time, Obama’s putting forward the worst idea yet: Price fixing.

Making a last-ditch effort to save his health care overhaul, President Barack Obama on Monday put forward a nearly $1 trillion, 10-year compromise that would allow the government to deny or roll back egregious insurance premium increases that infuriate consumers.

The Whitehouse website has more information at Policies to Improve Affordability and Accountability:

Both the House and Senate bills include significant reforms to make insurance fair, accessible, and affordable to all people, regardless of pre-existing conditions.  One essential policy is “rate review” meaning that health insurers must submit their proposed premium increases to the State authority or Secretary for review.  The President’s Proposal strengthens this policy by ensuring that, if a rate increase is unreasonable and unjustified, health insurers must lower premiums, provide rebates, or take other actions to make premiums affordable.  A new Health Insurance Rate Authority will be created to provide needed oversight at the Federal level and help States determine how rate review will be enforced and monitor insurance market behavior.

Having to submit a pricing scheme to a government-run rate review board is an old idea that has been discredited over and over. It’s pretty much the same sort of price control regime that held back the airline, trucking, and rail freight industries for decades until the deregulation of the Carter-Reagan era. I’m sure it will hold back healthcare.

What To Do If You Are a Victim of Police Misconduct

Packrat explains:

There is no shortage of advice out there about what you should do when you are forced to interact with the police. Just do a search and you’ll find a multitude of sites devoted to explaining what your rights are when dealing with law enforcement and how you should go about asserting those rights…

But, strangely enough, there is an absolute lack of advice available out there about what you should do once a police officer violates those rights… and there will be no shortage of questions you’ll have once it happens to you.

Read the whole Police Misconduct Victim’s Guide at Injustice Everywhere.

Who Gets the Best Fifth Amendment Treatment in the Country?


I’ve always known that police officers get special treatment when accused of a crime, but I always assumed it was just a good deal that the cops gave to other cops. I never knew there was an official court ruling about it.

Radley Balko points to a St. Louis Post-Dispatch article about the Garrity Rule:

In 1967, the U.S. Supreme Court resolved it with what came to be known as the Garrity Rule. It says a public employee can be compelled by threat of discipline to admit criminal activity, but the information cannot be used for prosecution.

Wikipedia puts it a slightly different way:

The Garrity warning is an advisement of rights usually administered by US federal agents to federal employees and contractors in internal investigations. The Garrity warning advises suspects of their criminal and administrative liability for any statements they may make, but also advises suspects of their right to remain silent on any issues that tend to implicate them in a crime. It was promulgated by the US Supreme Court in Garrity v. New Jersey (1967). In that case, a police officer was compelled to make a statement or be fired, and then criminally prosecuted for his statement. The Supreme Court found that the officer had been deprived of his Fifth Amendment right to silence.

I don’t understand this ruling at all.

If my boss thinks I committed a crime, he can ask me questions about it. As far as I know, if I refuse to answer, it’s perfectly legal for him to terminate my employment. (There may be unemployment compensation issues.) And if I answer, he’s free to take my statements to the police so I can be prosecuted. Why should any of that change if I’m working for the police department?

To put this in perspective, consider what can happen if a prosecutor charges me with a crime and gets the judge to set bail high enough that I’m stuck in jail for months. There’s nothing to stop the prosecutor from offering me a deal that will get me out of jail with time served if I plead guilty.

So, to summarize:

  • Threat of jail: Not a violation of the right to remain silent.
  • Threat of being fired: Violation of the right to remain silent (cops only).

Am I missing some nuance, some subtle principle of law, that makes this make sense?

One more thing from Wikipedia about the Garrity Rule:

The Garrity warning helps to ensure suspects’ constitutional rights, while also helping federal agents preserve the evidentiary value of statements provided by suspects in concurrent administrative and criminal investigations.

Perhap—I’m willing to listen to a good argument explaining why I’m wrong—but living in Chicago, I can tell you something else the Garrity warning helps ensure: Police department coverups. By “forcing” an officer to give a statement, the department can keep his statements from being used against him by a prosecutor, or ever reaching the media.

In the Post-Dispatch story above, the coverup is pretty clear:

In the World Series case, internal affairs assigned two detectives to concurrent investigations. One, focused on internal discipline, did the Garrity interviews and put together a file for administrative use. The other was barred from the Garrity material and assigned to see if there was enough other evidence to support criminal charges.

Circuit Attorney Jennifer Joyce, who was highly critical of the officers who let their friends and family use the tickets, could examine only the latter file before announcing there was no evidence of a crime.

The St. Louis Police Department told [Circuit Judge Philip Heagney ] Feb. 8 that Garrity prevents it from fully complying with his Dec. 11 order to provide an activist with its files on officers disciplined for using 2006 World Series tickets seized from illicit scalpers.

Police officials claim the interviews are private, as personnel records.

So the prosecutor’s office can’t get all the evidence the police have gathered (which sounds like obstruction to me) and no one outside the police department ever gets to see it either.

No way that could go wrong.

Abuse, Involving Children

Matt Brown at the Chander Criminal Defense blog had a client who was accused of hurting her child, but the prosecutor dropped the charges. Nevertheless, Arizona Child Protective Services apparently ignored all that and conducted their own investigation. Brown blogged his account of their interview with his client.

It’s one of the most chilling things I’ve ever read.

The meeting was conducted by a woman who proclaimed herself the “facilitator.” She used the term “facilitator” with the kind of frequency I commonly encounter when a person using a word doesn’t quite know what it means and thinks repeating it will make him or her appear smart. She also said things like “matter-of-factly” and “irregardlessly.”

My client, my client’s mother, the assigned CPS caseworker, and I were all in attendance. We each filled out little name cards. The back of the cards featured a list of ground rules. The last one was “no blaming or shaming.” …

The facilitator, who at times did a fair job of pretending to be impartial, generally undertook the role of grand inquisitress with zeal that would make Mike Nifong blush. When she first started attacking my client, no one seemed to notice my comment that it sounded an awful lot to me like some prohibited “blaming or shaming” was taking place. I don’t think the facilitator thought the back of the name cards applied to her.

I don’t know anything about the mother, and so for all I know, the child really does need to be taken away from her. I realize that you can’t always wait for a criminal conviction to protect a child. But there’s a difference between a measured response to a child welfare emergency and the Stalinist show trial Brown describes:

The facilitator clearly didn’t listen to anything my client said. My client said she’d do anything for her kids, and the facilitator responded with “so you’re unwilling and unable to care for them?” “No,” my client said, “I will do anything.” The caseworker and facilitator stared at my client like she just said “take my kids, I don’t care and won’t do anything to help them.” It was like watching two different conversations.

When it suited the facilitator’s preconceptions, she mixed up the facts. She exaggerated the length of CPS’s involvement, the amount of time it took my client to get services for her daughter, the number of days of notice they’d given, and the severity of the alleged conduct underlying the scratched criminal charges. She was wholly incapable of wrapping her head around the fact my client did not assault her daughter. The caseworker claimed she saw choke marks on my client’s daughter, which the facilitator agreed proved my client assaulted her. I found that very strange considering that the alleged assault was supposedly just three punches.

It all ends about how you’d expect:

After what I can honestly say was the most farcical proceeding I’ve ever witnessed, the facilitator and caseworker decided to take both of my client’s children away. In a meeting they said lawyers never attended (and which most lawyers told me they never attended), CPS decided to take not just the child involved in the criminal case, but the child who had nothing to do with anything.

Here comes that special little touch that made me think of Communist show trials:

As my client cried her eyes out, the facilitator handed her a pamphlet entitled “Icebreakers” to help her prepare for when she next gets to see her children. The facilitator described CPS’s programs to my client as if she expected my client to give her a hug and thank her.

Somehow I know, just know, that at some point in Brown’s client’s rehabilitation or treatment or counseling, she’s going to be put in a situation where the only way she can get her children back is to “take responsibility for what she did”—admit to abusing here daughter—even if she never did any such thing.

Personally, I’m still in shock. I can’t believe what I saw. I can’t believe CPS can take kids based on nothing, can’t believe the facilitator and the caseworker could do something like that to a family, and can’t believe that any human being could be so willing to make a life-changing decision so callously. It’s the kind of thing I’m going to have nightmares about for years to come.

I was getting angry just reading Matt Brown’s account of all this. I can’t imagine what it would be like to be in the room while it was happening and not be able to do anything about it. By the time I finished reading this post, I almost expected Matt to reveal that the meeting ended when he and his client beat the facilitator to death.

Surviving Scott Greenfield

A few days ago, Rachel Humphrey Fleet started a blog called The Compelling Brief Blog, which was apparently going to be all about writing legal briefs. Her first post was called “Tweeting the Judge: How Legal Writing is Like Social Media.” (For the moment, it’s available in the Google cache here.)

The post caught the eye of Scott Greenfield at Simple Justice, who posted a response. For reasons I don’t quite understand, he wasn’t real happy with some of the things Rachel said, and if you know Scott, you know he made his feelings very clear. The exchange he had with Rachel in the comments wasn’t exactly a warm conversation either.

The next day, Scott wrote more about the whole situation, and in the comments, Rachel announced that she didn’t have time for all this and so she had deleted her blog. That doesn’t seem like an outcome that does anybody any good.

Here’s some of what Scott wrote in his second post:

It’s now happened a few times in the past few weeks, where I question a post from some newcomer to the blawgosphere and they get upset about it.  The problem is that my reaction to their post is less than adoring.  From their position, less than adoring means I have cruelly maligned their intellect and family.  I’ve hurt their feelings and they let me know it.

The way Scott sees it, all the social media marketing guru types are telling people how great blogging is and how much fun it is to blog, but they are leaving out an important aspect of the blogosphere:

The choir is busy singing the praises of blawging and social media.  Create a blawg and find happiness and success, goes the refrain.  Write well and they will come.  No one talks about the dark side.

We would have talked about the dark side.  The blawgosphere is a tough place, where your peers may read your ideas and tell you that they are ugly.  Butt ugly.  That’s the way the place has operated since its doors opened, and it still functions that way today.

Write something and someone may disagree with you, and do so publicly on their blawg.  Promote yourself and someone may knock you off your marketing pedestal and make you look like a fool.  Or worse.  None of the cheerleaders mention that there is no guarantee that you will find love or adoration online.  None mention that you may well find yourself the butt of a thousand eyeballs if your well-written blawg post is not well-received.

This is a great point. Any class or seminar that purports to explain how to get involved in blogging and/or social media should explain what kinds of reactions to expect and how to deal with them. Blogging can lead to meeting interesting people and making new friends, but it can also lead to meeting scary people and making new enemies. You should plan on handling such encounters when you start to blog.

The interaction with Rachel Humphrey Fleet is not the first time Scott Greenfield’s blogging style has disconcerted newcomers, and I’m sure it won’t be the last. The outcome, however, was kind of depressing, because Rachel walked away discouraged.

As someone who has successfully left regular comments at Scott’s blog without being told to “get off the lawn” too often, I think I can offer 8 pieces of advice to future bloggers who want to survive in the blogosphere even if Scott Greenfield says something mean about them:

(1) Scott is not the meanest guy in the blogosphere. Not by far. The early growth of blogging was fueled by major controversies—the war on terror, the war in Iraq, the government’s response to the devastation in New Orleans, and the Bush presidency in general—which resulted in a combative style of discourse that remains to this day. There are people here who will swear at you, there are people here who will refute you sentence by sentence, and there are people here who will swear at you while refuting you sentence by sentence.

(And then there are the mindless partisan hacks and total crazies. In some ways they’re a lot worse than folks like Scott, but in other ways they’re easier to deal with. I’ll explain later.)

This is a good time to make it clear that I’m just using Scott Greenfield as a stand-in for anybody in the blogosphere that posts something critical or says something unkind about you. In the criminal law field alone, you’re likely to run across confrontational bloggers like Mark Bennett, Brian Tannebaum, Norm Pattis, or Jamie Spencer. Then there’s the vast hoard of non-lawyer bloggers like me, the folks at Reason, Michelle Malkin, Daily Kos, and the teeming masses at the Huffington Post. What I’m saying here applies to everyone in the blogosphere who doesn’t like what you have to say.

(But I’ll continue to pick on Scott for a while. He can take it.)

(2) Everyone has hot button issues. They’re sick and tired of hearing arguments they think are stupid, and they’re not going to let it pass. Scott Greenfield’s buttons are sleazy lawyer marketing, unprofessionalism, law schools, and something he calls the Slackoisie.

More to the point, this also works the other way around: Every issue you write about, no matter how straightforward and clear it seems to you, is going to be somebody’s hot button issue. Blogger Pete Guither is a nice guy, but when someone writes a stupid article supporting the war on drugs, Pete brings the pain, and encourages his readers to pile on as well. When I wrote about police SWAT teams killing an unarmed mother and wounding her infant child in the process, a couple of people left rude comments defending the baby shooters. Apparently criticism of the police was their hot button issue.

If your post pushes someone’s buttons, you’re going to get an unfriendly response.

(3) If you want your blog to be popular, then it doesn’t matter what people are saying about you, as long as they’re talking about you. The currency of the blogosphere is the link, and by linking to your blog, Scott is helping to make your blog more visible to potential readers.

Scott’s Simple Justice is a big name in legal blogging (Google PageRank 6), and comment spammers are always trying to get links from his blog to their websites in order to beef up their search engine rankings and attract readers. When Scott links to your blog post and calls it stupid, he’e also giving you a valuable boost to your visibility.

(4) For any given issue, many of Scott’s readers will disagree with him. When he links to your page and says bad things about what you wrote, chances are he’s also sending you people who disagree with him, and who will like what they find at your site. Keep writing, and people who share your values will eventually find you.

(This is also why the partisan hacks and crazies are easier to deal with. A lot of people in the blogosphere recognize them for what they are and will come to the defense of their victims.)

(5) As with everything else in the world, you can blog about it. New bloggers often have trouble coming up with ideas for posts. But when you do write something, and someone criticizes it in a comment or a post on their own blog, that’s something else you can write about.

Respond to the criticism. When the badgelickers showed up in the comments to defend the shooting I mentioned above, I got two more posts out of it. When a prosecutor took me to task for defending an alleged cop killer, I posted an explanation of why he was wrong.

Carefully take apart their argument, or point out that they completely missed the point of your post, or thank them for showing you the error of your way, or tear them a new one. Whatever seems right. You’ve got a topic for a new post.

(6) When responding to criticism in the blogosphere, you will probably not be able to win over your opponent. Not quickly, anyway. You can try once or twice, but don’t put too much time into it. It’s far more productive to try to win over the reading audience. This should be obvious to lawyers: Criminal defense attorneys aren’t trying to convince the prosecutor that he’s wrong, they’re trying to convince the jury that he’s wrong.

(7) You always have the option of completely ignoring Scott. Simple Justice is just another bunch of pages on the web, and it certainly has no power over you.

Does this mean that your critics may go unanswered? Yes, but that doesn’t mean you should jump every time they yell. My advice in point 5 above notwithstanding, when you respond to your critics, you are allowing them to set your blogging agenda. Wouldn’t you rather set your own agenda?

(8) Filmmaker Jean-Luc Godard famously said that the best way to criticize a movie is to make another movie. Free speech advocates say that the best response to bad speech is good speech. If you don’t like the abrasive culture of the blogosphere, then start a better culture. Keep writing your own blog and show us how it should be done.

The Best Rock ‘n’ Roll Song In the World

Well, maybe not for anyone else, but it is for me.

It was 1982. the Commodore 64 was the cool new thing, Britain and Argentina went to war over the Falkland islands, spymaster Yuri Andropov rose to power in the Soviet Union, and Vic Morrow and two chidren died in a helicopter accident while filming Twilight Zone. Disney opened EPCOT to the public, John De Lorean got busted for coke, the Unabomber narrowly missed killing people at Vanderbilt, and Larry Walters took his famous balloon flight in a lawn chair.

Ronald Reagan was president. I didn’t like him because he was a conservative, and conservative pricks like Jerry Falwell were trying to destroy rock music. Us kids thought that was a scary thing at the time, but of course he never had a chance: MTV had just launched, the Biograph theater on Lincoln was staging midnight showings of The Rocky Horror Picture Show, and the airwaves were filled with songs like Foreigner’s “Juke Box Hero“, Survivor’s “Eye of the Tiger“, the B52s’ “Rock Lobster“, and Golden Earring’s other hit.

(Follow the “Eye of the Tiger” link to check out what music videos used to look like. Yikes.)

There was also a hardrocking band called Axe, and they had just released their third album, Offering. The first cut on the album was “Rock ‘n’ Roll Party In The Streets.”

It was the end of my last year in high school. The hot summer was filled with good friends, fast driving, wild parties, and rock and roll. I was at the top of my game with the whole world ahead of me, and “Rock ‘n’ Roll Party In The Streets” was the sound of freedom.

It’s a purely personal reaction, I’m sure. I don’t know anyone else who had that reaction to it. Heck, I’ve never even met anyone else who remembers the song. But to this day it gives me a rush like no other.

It starts with a keyboard intro that I instantly recognize, then the guitars come in with power chords to punctuate the rhythm, and then the drums and Bobby Barth’s strained voice: 

You know, I know, this ain’t gonna last forever
Let’s take advantage while we still can
I’m sure that you’ll find the days couldn’t get any longer
Day after day it’s gettin’ old fast

Let’s have a knock down, drag out rock ‘n’ roll party in the street
Get all the boys together have them tell everybody that they meet
Friday night at midnight we’re all gonna get what we need
Let’s have a knock down, drag out rock ‘n’ roll party in the street

You know, I know, we ain’t gonna show no mercy
To anyone that tries to get in our way
I’m sure that you’ll find we got to put the word out for certain
Once the party gets started we’re all here to stay

Let’s have a knock down, drag out rock ‘n’ roll party in the street
Get all the boys together have them tell everybody that they meet
Friday night at midnight we’re all gonna get what we need
Let’s have a knock down, drag out rock ‘n’ roll party in the street

Axe broke up after guitarist Michael Osborne died in a car crash. Barth worked on other projects and then in 1997 he put the band back together and they recorded new versions of many of their songs for the album Twenty Years From Home. I think this was a work-around for a sticky rights issue or two, allowing the band to finally release CD versions of the songs.

In many ways, the newer version of “Rock ‘n’ Roll Party in the Streets” is a better song than the old one. Barth’s voice seems clearer and richer than it was in 1982, the guitar work is more crisp, and the whole thing has a more professional sound.

But the original version will always be my favorite. For most of a year, I lived my life to that song.

Axe – Rock ‘n’ Roll Party In The Streets – on YouTube

A Lockpicking Answer

A few weeks ago, I mentioned that I’m fascinated by the idea of lock picking, but I wondered if it was actually legal to own lock picks here in Illinois. So I posted a question in Avvo Answers, an online service in which lawyers give out free advice, to see if anyone could or would tell me what the law was. I wasn’t spectacularly impressed with the response.

Fortunately, I had a backup plan. In a blatant attempt to encourage more Chicago-oriented crimlaw blogging, I emailed my question to Denise Nalley, a local criminal defense lawyer whose Chicago Criminal Law Journal blog is getting off to a slow start. She was nice enough to provide an answer, which I’ll repeat here in case anyone else is interested:

Regarding lock picks, it is important to note that many things can be construed as burglary tools under the statute, like screwdrivers.  Also that little stick pin that many parents have to open doors if their kids lock themselves in a room is also technically a lock pick.  So, it is not illegal to just own them, the State must also prove intent to enter AND intent to commit a theft therein.  The problem arises when what you own is a “lock bumping” device.  This refers to a device used to move the internal tumblers and I suspect is what you are interested in.  If a person is found in possession of one of these devices a Judge may infer intent and you will be screwed unless you are in a profession allowed to be possession of said device.  (See statute below)  If found guilty of Possession of Burglary Tools it is a Class 4 Felony punishable by 1-3 years in prison and it is a probation eligible crime.  I have no knowledge of any City statutes deviating from State statutes here.  I hope I answered your questioned.

Nalley also included the relevant statute:

Sec. 19 2. Possession of burglary tools.

(a) A person commits the offense of possession of burglary tools when he possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft. The trier of fact may infer from the possession of a key designed for lock bumping an intent to commit a felony or theft; however, this inference does not apply to any peace officer or other employee of a law enforcement agency, or to any person or agency licensed under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004. For the purposes of this Section, “lock bumping” means a lock picking technique for opening a pin tumbler lock using a specially crafted bumpkey.

(b) Sentence.

Possession of burglary tools in violation of this Section is a Class 4 felony.

(Source: P.A. 95 883, eff. 1 1 09.)

That’s not quite the answer I was hoping for—when jail is a possibility, I’d prefer a somewhat brighter line—but I suspect it’s the best answer I’ll get for such a hypothetical situation.

By the way, just so we’re all clear, I’m not a lawyer, Nalley has never even met you, and this isn’t legal advice.

Is Consistency Enough?

People I trust have been saying good things about Jeff Gamso’s blog, Gamso – For the Defense, and I’ve been meaning to check it out for months now. I finally got around to it, and I’m glad I did, because I discovered a fascinating post called “Hobgoblins of Little Minds.”

It’s about what experts mean when they say a piece of evidence is “consistent”:

The criminalist who did the ballistics comparison wasn’t sure he had a match…The most he could say is that the gun was “consistent with” the one that fired the bullet that killed the young woman. The murder weapon.

“Consistent with.” What the hell does that mean?

It means “might be.” It means “maybe or maybe not.” It means “sure it’s possible.” It means “who knows.” All of which is a way of saying that it means not much of anything at all.

I have no idea what the ballistics expert means by “consistent,” but if he has any scientific integrity, the word “consistent” has a slightly more precise meaning than Gamso is allowing for.

Consider Gamso’s next paragraph:

“He’s not desperately poor.” That’s consistent with the guy who got laid off from the plant and is struggling to get by on unemployment and food stamps and also with Bill Gates and his billions. It tells you nothing.

But it does tell me something. It rules out the possibility that he’s desperately poor. Assuming we have a reasonable definition for “desperately poor,” it tells me he’s not living in the streets, sick and starving.

“Not desperately poor” is an awkward phrase, because it’s the negation of “desperately poor” rather than a positive assertion the way “consistent” is. But that leads us to a clearer understanding of what “consistent” means in ordinary usage: It means not inconsistent. That is, when the expert testifies that the gun he tested is “consistent with” the murder weapon, it means he cannot rule it out.

The only possible results of any test are that it is consistent or inconsistent with the idea being tested. It sounds pretty weak, doesn’t it? Saying you can’t rule something out is a long, long way from saying it’s true. As a matter of philosophy of science, however, this is as good as it gets. Scientific tests never really prove anything is completely true. Our technological civilization is built on scientific theories which have never been proven true, but which have survived countless attempts to prove them false.

“Consistent” means something, and when you have enough consistent results, it comes as close to certainty as science can get.

Gamso quotes from the Federal Rules of Evidence:

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

That definition bothers me for a reason that is probably a bit pedantic. In particular, I’m botherd by the phrase “make the existence of any fact…more probable or less probable”. I think I know what the rules are trying to say, but I believe it is an error in reasoning to say that a fact can be more probable or less probable.

The facts may be unclear, confusing, complex, uncertain, or unknown. But whatever the facts are, they happened. “Probable” has nothing to do with it. There’s no way that evidence or testimony at a trial can somehow reach back in time and change what really happened, or change the probability that something happened. Evidence can’t make reality more probable or less probable, because reality is fixed.

Evidence in science is no different when you examine it carefully. For example, a public health study might be reported in the nightly news as estimating that “10 million Americans have Greenfield’s disease.” A newspaper report might add that the study has an error of “plus or minus 2%.” That sounds like a strict cutoff, but a scientist would explain that it’s really a confidence interval. If you delve into the study, you’ll probably find out that the newspaper reporter used the study’s 95% confidence interval. The scientist would explain that this means there’s a 95% chance that the true number of Americans with Greenfield’s disease is within plus or minus 2% of 10 million.

The scientist would be wrong, however, for the same reason the rules of evidence are wrong. However many Americans have Greenfield’s disease—let’s say it’s 9,982,458—that’s how many have Greenfield’s disease, and there’s no chance or probability involved. What our 95% confidence interval of plus or minus 2% is really saying is that conducting this scientific study has a 95% chance of giving us a result that is within plus or minus 2% of the true number. Or, to put it another way, our result is consistent with the theory that Greenfield’s disease affects about 10 million people.

Getting back to our ballistics expert, when he says the defendant’s gun is consistent with the murder weapon, he’s not—despite what the Rules of Evidence say—making it more likely that the gun is the murder weapon. Rather, he’s saying that with some degree of scientific confidence, the prosecutor’s theory that the gun is the murder weapon was not disproved by the ballistic examination.

Now let’s look at a simpler example.

Suppose we suspect that a coin has been modified so that when flipped it always come up heads. We think this modification is subtle and undetectable to the naked eye (and we have no instruments available). How can we prove that the coin has been gimmicked if we can’t detect the modification?

Simple: We flip the coin.

If we flip it once and it comes up heads, that proves almost nothing. The coin will do that half the time even if it’s perfectly legitimate.

So we flip the coin again, and it comes up heads again. With two tests of the coin in our data set, the possibility that it’s a gimmicked coin is slightly higher, because this result will happen by random chance only one time in four. Do a third test, and it’s one time in eight. Four tests will come up all heads only one time in 16 with a fair coin, and so on.

If we keep flipping the coin and we keep getting heads, the possibility that this is a fair coin gets smaller and smaller. Ten heads in a row is only a 1-in-1024 possibility with a fair coin. By the time we get to 20 straight heads in a row, the odds of this being a fair coin are less than one in a million. It’s safe to conclude there’s something wrong with the coin.

(I’ve just made the same mistake the Rules of Evidence made. The coin is either gimmicked or it’s not. The 1-in-a-million probability is really a statement about the accuracy of the testing method. That is, it’s not really that the odds of this being a fair coin are less than 1 in a million. Rather the odds of a fair coin behaving this way are less than 1 in a million.)

The coin testing process I just described is good science for three basic reasons. First, it puts numbers to its results. Real science almost always involves some math, and real scientific studies usually state their results in form of probabilities and confidence intervals. Gamso does not report that the ballistics expert gave any probabilities with his conclusions.

Second, and more generally, our conculsion about the coin includes information about the error rate of our testing process: The chances of a coin that is not gimmicked behaving this way are less than 1 in a million. When the ballistics expert testified that the gun was consistent with the murder weapon, did he quantify or even characterize the possibility that it wasn’t the murder weapon? For example, did he explain what percentage of all guns would be consistent with the murder weapon? If it’s 1 in a million, that’s a pretty good sign that you’ve got the right guy. If it’s 1 in 10, the expert’s conclusion is just barely relevant.

Third, our conclusion about the coin is based on a series of independent tests. Each flip of the coin is a test. The results of any single flip indicate very little, because even a fair coin will come up heads (produce a false positive) 50% of the time. However, when we conduct a series of 20 independent tests, we can reduce the false positive to one in a million. In general, the more tests we conduct, the more we can reduce the liklihood of a false positive.

This last point is crucial to reaching a conclusion because (in theory, anyway) that’s logical rationale behind how the evidence in a trial builds up to a conclusion. Let me see if I can illustrate this with some data that I totally made up.

Let’s pretend that the ballistic match is a very simple two-step process. First, we match the caliber of the gun, which must be one of 10 possible calibers which occur in equal numbers—i.e. for any given caliber, 10% of all guns are a match. Second, we match the land-and-groove pattern within the barrel, of which there are 10 possible patterns, all occuring in equal numbers. Since each matching step eliminates 90% of the guns, a ballistic match that passes both steps has eliminated 99% of the guns, meaning that only 1 in 100 guns will match.

In addition, we have a witness ID, which we’ll assume is also 90% accurate. Combined with the gun match, this eliminates 90% of the remaining false positives, meaning that only 1 in 1000 gun owners match the criteria. We’re getting somewhere.

It all goes wrong, however, if there are hidden connections between the criteria. For example, how did the police narrow down the suspect list that they presented to the witness? If they already had the ballistic report, perhaps they did a database search for people who owned guns of the same caliber as the murder weapon, and used the resulting list to build their suspect list.

If so, this means that the witness ID and part of the ballistic examination are correlated and not independent. And to the extent that they’re correlated, we have to factor that out of the calculation. In this case, every suspect presented to the witness was known to have a gun that matched the caliber of the murder weapon, so the ballistic expert’s discovery of this fact adds nothing new. This eliminates the 1-in-10 ratio for the caliber match, and we’re back down to a 1 in 100 chance of a random person matching the known facts about the murderer.

One of the reasons DNA evidence is considered so good is that scientists have a pretty good understanding of the prevalence of various DNA markers in the human population and of the correlations between them. In fact, DNA testing is explicitly based on statistics, which is why DNA test results usually include an estimate of the chance of a false positive. With a good DNA sample, the chance of a random match is often less than 1 in a billion, and lawyers love to bring that number out in trial because it is so impressive.

By comparison, Gamso’s account of fingerprint experts saying things like “There is no error rate. It’s 100 percent accurate.” is infuriating. Only abstractions are perfect. Everything in the real world has an error rate.

Sometimes that error rate is vanishingly small, which allows us to say that something is “error-free” when speaking informally. But if you press for a number, a real scientist should be able to find one.