June 2011

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So I just drove from Chicago to the Jersey Shore, and boy are my arms tired… Knees. I meant to say, boy are my knees tired. They got really stiff from sitting in one position for 20 hours of drive time over 2 days.

I wanted to leave on Thursday morning, but a couple of things came up, so I didn’t hit the road until around 1 pm, a bit later than I had planned. As most eastbound trips must, this one began with killer Chicago traffic, followed by a stop at the Gas-A-Roo in Hammond, Indiana to fill up with that cheap, cheap non-Chicago fuel.

Then, eastward.

Indiana is pretty normal. I’ve been there before and it’s no big deal. I was just going to see more of it this time. I’ve got an Illinois I-Pass transponder for tolls, and it also works in Indiana. At some point, I took a break and used my iPhone to find the tollway website, to see if it would work in any of the other states. As it turns out, Illinois I-Pass is the same as E-ZPass, so it works in a few other states, including all the ones I’d be passing through in the outbound leg of my trip.

Ohio was next, and boy is it a boring state. Actually, for all I know, it’s an interesting place, but I was driving the Ohio Turnpike, so I didn’t see any of it. Just mile after mile of boring highway. The Ohio Turnpike is a depressing thing. It’s a limited access tollway, so the only places you can stop at along the way are the tollway rest stops, which are pretty dreary and all the same. Actually, they’re not quite the same. The rest stops are being upgraded, so there are two types: Obviously old and dreary, or brand new and less obviously dreary.

This dreariness has a well-known economic cause: Monopoly power.The restaurants, stores, and gas stations in the rest stops are the only places you can get to without the annoyance of leaving and reentering, so they have a bit of monopoly pricing power. As is usually the case, not only do they raise prices, they also reduce the quality and variety of goods and services.

For example, I’ve always mapped out my driving routes before taking them, but on this part of the trip, I hadn’t bothered. For the first time ever, I was relying solely on Jill for navigation. (“Jill” is what we call our GPS, because the English language speech files for our Nuvi are named Jack and Jill.)

The problem with using Jill for guidance, I discovered, is that once I got a few hundred miles from home, I was basically just the monkey that drove the car. I had no locational awareness. (At one point, I pulled up a tiny map on my iPhone and was surpised to see that I was skirting the southern shore of Lake Erie and I didn’t even know it.) So I decided to stop and pick up one of those 50-state road atlases that I used to use to plan all my trips.

It turns out they don’t sell those on the Turnpike. Monopoly power means they don’t have to. I was thinking of driving over to the other side of the rest stop and asking the truckers if they know where I could find a proper truck stop. A good truckstop has an awesome variety of driving supplies — everything you could need for living a life on the road.

Anyway, it was getting dark as I passed Cleveland, so I stopped at the Brady’s Leap rest stop just before Youngstown to figure out where I was going to get a room for the night. I tend to stay up kind of late, and I didn’t want to spend three or four hours staring at the hotel room walls when I could still have been driving.

I decided I could make it into Pennslvania. That’s a turnpike too, so it looked like I had only a handful of places I could get off and look for a hotel. Between Kayak and advertising in the rest stops I found a few candidates, but and I couldn’t make up my mind where I was going to stop, so I decided to postpone the decision.

The drive through Youngstown, Ohio was slightly interesting, because somehow Jill got me off the Turnpike. I swear I stayed to the side I was told to stay on, but somehow that got me onto I-680 through town. After that, it was just boring highway all the way to the border.

Pennsylvania was only a little different, mostly because of the mountains, which I couldn’t see at night anyway. It was another boring turnpike. I stopped at the first reststop to figure out my plan for the night. (By the way, the rest stop had Wi-Fi, but they wanted you to pay to use it. Monopoly power again.) Based on the hotel ads, it looked like I could stop at either Irwin, New Stanton, or Somerset. I decided I could make it all the way to Somerset, which looked like it had a lot of hotels.

Unfortunately for me, it also had a lot of motorcyclists for Thunder in the Valley. When I got off the turnpike at 2am and started calling hotels, they were almost all booked up. The Days Inn had a smoking room for $70, and the Super 8 had a Jacuzzi room for $90. I went with the Jacuzzi, but when I got there, the guy offered to let me have the room for $50 if I didn’t use it. I took the deal. I was only going to sleep.

On Friday morning I woke up, checked out, had breakfast, and drove through the mountains of Pennsylvania, which were more interesting in daylight. Also, there were tunnels through some of the mountains, which are an unusual experience for me, being from Illinois, where we don’t really have geography.

(I wonder why they don’t allow lane changes in the tunnels. I guess lane changes must be a cause of accidents, which would be an awful mess and block traffic for a really long time.)

The rest of the drive through Pennsylvania was weaving through mountain valley after mountain valley. I found it relaxing and pleasant, but there’s not a lot to write about. And I never got that road atlas, so I still have no sense of where I’ve been

I had to meet some people at 4:30, and I was on track to be at least an hour early until I crossed the Delaware river into New Jersey. At which point the traffic began to suck. I reached my destination in Avalon at about 4:40, which was close enough that I still got to join everybody for dinner at Sylvesters. Later that night, I took camera and tripod to the beach for some long exposures as the sun went down, although I did something wrong because they came out too dark.

I started to blog all this last night, but I got too tired to finish. I’ll stay here until Sunday morning, and then I’m headed to Pikeville, Kentucky by way of D.C. and whatever scenic routes I can find in Virginia.

Update: The return trip.

I’m going to take a break for a week or so (maybe), but here are a few random shots around the web:

The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.

— F.A. Hayek, The Fatal Conceit

An AP story by Ricardo Alonso-Zaldivar explains a glitch in the Patient Protection and Affordable Care Act (PPACA):

WASHINGTON – President Barack Obama’s health care law would let several million middle-class people get nearly free insurance meant for the poor, a twist government number crunchers say they discovered only after the complex bill was signed.

The change would affect early retirees: A married couple could have an annual income of about $64,000 and still get Medicaid, said officials who make long-range cost estimates for the Health and Human Services department.

Up to 3 million more people could qualify for Medicaid in 2014 as a result of the anomaly. That’s because, in a major change from today, most of their Social Security benefits would no longer be counted as income for determining eligibility. It might be compared to allowing middle-class people to qualify for food stamps.

Medicare chief actuary Richard Foster says the situation keeps him up at night.

This is the sort of thing that happens when you try to restructure a huge chunk of the American economy by quickly passing a giant bill that nobody understands.

And this sort of thing isn’t really what Hayek was talking about. This is a problem with the way various provisions of the bill interact with themselves and other law. Hayek was talking about the kinds of problems that will arise when this complex piece of legislation collides with the thousands of companies and millions of American’s it’s going to affect. People will respond in ways that are hard to predict. There will be unintended consequences.

Of course, some problems have already popped up that seem likely to cause a lot of trouble in the future. The worst thing I’ve heard of so far is the PPACA’s attempt to regulate medical loss ratios, which has a pretty good chance of making a lot of health insurance companies — especially the smaller ones, which would have to manage more volatility in their MLRs — decide to go into some other business. On the other hand, having insurance companies stop insuring children because of onerous regulations is also pretty bad.

I’ve had a few job interviews recently, and although the subject has never come up, it seems likely that, in this day and age, someone at one of these companies is probably going Google me, and the first thing they’ll find is this blog.

Uh-oh.

So…If you found this blog because I applied for a job at your company or because someone at your company is thinking of hiring me as a consultant, there are a few things I should probably explain…

I’m not like this all the time. I’m not that guy who just has to slip politics into every conversation. (“The project is over budget? Sounds like it’s run by a bunch of Liberals!”) I know how to turn it off. In fact, I really only turn it on for the blogosphere and for private conversations with other people who share my interests. I understand that some subjects are not suitable for the workplace.

I’m not going to blog about company business. I might end up blogging about some interesting things that happened while I was on the job (“I was in Phoenix on business and someone stole my rental car!”), but I’m not going to blog about company business unless your media policy permits me to talk about it. I understand that some things need to stay confidential.

I’m not going to blog on your dime. If reasonable personal use of the internet is one of the perqs of the job, I’ll probably take advantage of that to do some blogging or answer a few comments in my spare time. But other than that, I won’t be working on my own projects while you’re paying the bill.

I’m not a freak. As a matter of public policy, I think we send too many people to jail for a lot of things that should be legal. That doesn’t mean that I want to do those things. I can comply with your workplace policies.

We can talk about the blog. If something on this blog makes you uncomfortable enough that you’d consider not hiring me because of it, tell me about it. If I’m otherwise a good fit to your needs, it would be a shame not to at least try to work something out.

I look forward to working with you.

Thanks,

Mark

No here’s a dumb story from Portland, Oregon:

When an apparently drunk man peed in a Mount Tabor reservoir around 1:30am last night, he set off an unprecedented chain reaction.

A security officer who had been watching the man and his four friends drinking from the reservoir guard tower alerted police, then called on the water bureau to take the reservoir offline. Using a new $23 million remote control system, just installed in April, the bureau immediately shut off the pipes leading from the reservoir. The guard and a police officer confronted the men and got their information, including the alleged 21-year-old pee-er.

Then, the water bureau made the call to dump the entire 7.2 million gallons of water in the reservoir, at a cost of over $35,000. That’s one expensive trip to the bathroom.

On top of that, the city is working with the district attorney to consider pressing charges against the pee-er, perhaps to help recoup some of the cost. Water Bureau administrator David Shaff isn’t sure what the charge would be exactly, “Well, I just dumped 8 million gallons, there’s maybe a ‘theft’ in there somewhere… He has some idea that he’s made a mistake, but he has no idea how big.”

[Emphasis in the original.]

His mistake wasn’t as big as the one the Water Bureau just made by dumping all that water. Maybe I’m missing something but doesn’t the Water Bureau clean the water? Not to mention that when you dilute a bladder’s worth of urine with seven million gallons of clean water, for all practical purposes the resulting water is still urine-free. Especially since urine itself is mostly water.

Also, urine is normally sterile, so the only risk is from bacteria if the guy had an infection that could get into the urine stream. Another story indicates that he was out that night with four other people. I haven’t done the math, but my guess is that those people face a greater health risk than the population of Portland because they probably touched a guy who had just peed without washing his hands.

Jonathan Turley links to yet another story of TSA idiocy:

The family was going through security when two TSA agents singled Drew Mandy out for a special pat down. Drew is severely mentally disabled. He’s 29, but his parents said he has the mental capacity of a two-year-old, which made the experience that followed at metro Detroit’s McNamera Terminal that much harder to deal with.

“You have got to be kidding me. I honestly felt that those two agents did not know what they were doing,” Mandy told us.

Dr. Mandy claimed they asked Drew to place his feet on the yellow shoe line, something he didn’t understand. They proceeded to pat his pants down, questioning the padding which was his adult diapers. When the agents asked Drew to take his hand and rub the front and back of his pants so they could swab it for explosives, his dad stepped in and tried to explain that Drew was mentally challenged.

“They said, ‘Please, sir, we know what we’re doing,'” Mandy said.

The TSA agents saw Drew holding a six-inch plastic hammer.

“My son carries his ball and his hammer for security. He goes everywhere with (them),” said Mandy.

The TSA it seems saw the toy as a weapon.

“He took the hammer and he tapped the wall. ‘See, it’s hard. It could be used as a weapon,'” Mandy explained.

So the TSA took the toy hammer away. Because they’re assholes.

A little over four years ago, a gunman entered a building on the Virginia Tech campus and started shooting. By the time it was over, he had killed 32 people. After the fact, a lot of pundits said stupid things (e.g. blaming it on video games or the gays), but probably the worst comment was from John Derbyshire:

As NRO’s designated chickenhawk, let me be the one to ask: Where was the spirit of self-defense here? Setting aside the ludicrous campus ban on licensed conceals, why didn’t anyone rush the guy? It’s not like this was Rambo, hosing the place down with automatic weapons. He had two handguns for goodness’ sake-one of them reportedly a .22.  At the very least, count the shots and jump him reloading or changing hands. Better yet, just jump him. Handguns aren’t very accurate, even at close range. I shoot mine all the time at the range, and I still can’t hit squat. I doubt this guy was any better than I am. And even if hit, a .22 needs to find something important to do real damage-your chances aren’t bad.

At the time, I went into a great bit of detail about why this kind of thinking is wrong-headed, but it basically boils down to the fact that people in general aren’t very good at responding to unusual situations under stress.

About a year later, a bunch of pundits got upset about a 78-year-old man who was supposedly hit by a car and left lying in the street as people walked by. It was apparently a great opportunity to decry the moral poverty of our society, and again I explained why they were overreacting.

I can’t say for sure why people at the scene did what they did, but I think we should cut them some slack for the inability of this crowd of strangers to quickly organize a response to an unusual and frightening situation.

Maybe it’s because I’ve spent so much time wrangling computers for busy executives, university professors, and engineers, but I’m not surprised or disappointed when very smart people have trouble figuring out what to do in novel and complex situations. And I’ve done enough reading about how people respond to crises to know that stress only makes it worse.

Now some people are criticising Dr. Mandy for his handling of the TSA agents who mistreated his mentally disabled son:

Whether it’s the parent of a mentally challenged young man, or the mother of a baby, at what point does a parent decide not to back away and acquiesce in the abuse of their child?  Apparently, the tipping point is when told to do so by anyone wearing the uniform of a government agent. 

No doubt Dr. Mandy, an osteopath specializing in pediatrics per a quick search, has spent a good part of his life helping his son to enjoy life as best possible.  He likely a wonderful, caring father who has shown love and devotion to Drew, and that’s great.

But some parents would rather take a bullet between their eyes than allow anyone to do harm to their child.  This situation hadn’t escalated to the point where bullets were in the offing, and yet Dr. Mandy complied with the instructions of his TSA handlers.  Was there something about them to suggest they really did know what they were doing?  It’s hard to believe.

So why did he just back off and let the TSA do as they pleased?  Where is the outrage?  Where is the will to tell the blue-shirted monkeys that they don’t have the first clue what they’re doing, that they are doing pointless harm to your child and that you are not going to be compliant sheep?

First of all, Dr. Mandy’s a mature, accomplished individual. He’s wealthy and white. This sort of treatment is probably a bit unusual, and he wasn’t prepared for it.

Second, beyond explaining his son’s problems to them, what would arguing have accomplished? Yelling at people always feels good, but could he have changed the TSA goon’s mind? Gotten him to stop annoying his son? I doubt it.

Third, those TSA people are sort-of cops, but they’re the worst kind of cops: A cop with very little power except for one specific area. That you happen to be in. Anyone who’s run into a self-important mall cop knows what I mean. Escalating the situation could lead to the family being separated for questioning. Worse, if the father got himself arrested, Drew could have been tossed into some sort of state welfare system until he got out. (Or, since we’re talking about the TSA, he could have been left to wander the airport, which might actually be safer.)

Years ago, I read a story by a tough-sounding criminal defense lawyer who got stopped on the highway by a cop who wanted to search the car. He knew he didn’t have to let him, but he let the cop do the search anyway because the cost of a confrontation would be too high. You see, the lawyer had his dog in the car. If he got arrested, he was afraid of what would happen to his dog while he was locked up. How much more concerned do you suppose Dr. Mandy was for his son?

I’ve told my children that my love for them is such that I would jump in front of speeding bullet to protect them.  There have been moments when I’m put to the test, fortunately not a speeding bullet but a time when I am faced with the decision to either stand up and protect them at my own risk, or snivel and justify why I backed away.  I’ve made my choice. How any parent could back down is unfathomable to me.

Eh, the TSA goons were annoying his son, and they took away one of his toys. Maybe his father should have put on a symbolic show of resistance, but he only had a few seconds to make up his mind, and this is what he did.

And then he got the TSA to apologize and change their training, and the whole stupid incident was turned into a three-minute news segment that’s getting attention all over the internet. It’s quite possible that mentally challenged air passengers will be treated better as a result. It’s not exactly a bad result.

I saw X-Men: First Class on Saturday, and I know some other reviewers don’t agree, but I thought it was the best superhero movie I’ve seen in a long time. I’ve not seen any of director Matthew Vaughn’s other movies, but on the strength of this one, I think I’ll have to. It’s that good.

It was well-written too, which is a bit of a surprise since there are six credited writers, which is usually a very bad sign. Instead, the movie gives us a pretty good origin story for the X-Men as an organization.

Most superhero stories are escapist fun at a very basic level, and First Class delivers, but as with many of the best superhero comics, there’s a strong moral element. Some people complain that comic characters are too simple, but that misses the point. The characters in a story like this are simplified to make their moral choices clearer.

Charles Xavier is a mutant raised in a good home. He’s smart, wealthy, and in possession of a telepathic power with few downsides. He looks completely like a normal human and wants to get along with them.

Hank McCoy’s beastly mutation has its advantages, but he’s also noticeably deformed. He can hide it with the right clothes, but it makes him feel like an outcast. Charles’s adopted sister Raven, later to become Mystique, also feels like an outcast. Her power of disguise allows her to hide herself perfectly, but she resents the need to use it.

Then there’s Erik Lehnsherr, a.k.a. Magneto, who looks like a normal human. However, as a Jewish child in the heart of Nazi germany, he saw the cruelty that humans could inflict on those who were different. He hides now, but he thinks that a Nazi-like genocide of mutants is inevitable, unless the mutants destroy humanity first.

Please don’t let me give you the idea that First Class is yet another show about teen angst over “being different.” (I mean, Claire from Heroes was indestructible, and she whined about it. Sheesh.) There’s more to the story than just a morality play, including lots of fun with the various mutant powers. And the whole story eventually winds up at the Cuban missile crisis, which turns out to be instigated by a Bond-esque supervillain millionaire named Sebastian Shaw.

The film is visually impressive and at times beautiful. The special effects are impressive, yet they’re clear and clean, and about as realistic as you could expect from a superhero movie. They support the story rather than overwhelming our ability to understand it. In one of the key scenes that illustrates their relationship, Charles helps Erik learn to maximize his magnetic powers, which he tests by trying to move an enormous object in the distance. Rather than yet another special effects set piece, the distant motion is quiet and understated. It’s not what the scene is about.

All in all, X-Men: First Class is familiar fare, but it’s a decent story, well-told, filled with interesting characters and impressive sights.

Joel RosenbergAh, dammit:

Joel Rosenberg – husband, father, mensch

On Wednesday afternoon, June 1, 2011, Joel had a respiratory depression that caused a heart attack, anoxic brain damage and major organ failure. Despite the very best efforts of the paramedics and the team at Hennepin County Medical Center, Joel was pronounced brain dead at around 5:37pm Thursday June 2nd, In accordance with his wishes, he shared the gift of life through organ and tissue donation.

He is survived by his daughters, Judith Eleanor and Rachel Hannah, and his wife, Felicia Herman. Today, June 3rd would have been his 32nd wedding anniversary.

Felicia

Dammit. The internet just got a little less interesting.

Update: Got a little more time now…

I first ran into Joel in the comments at Scott Greenfield’s blog, where I was struck by the fact that even though he clearly had an emotional investment in the issues, he was willing to accept the possibility that he could be wrong, he was willing to consider alternative explanations, and he seemed to believe that, despite their errors, most of his opponents were acting with good intentions.

Another time, in his typically disarming style, Joel found a common link between gun owners and gay couples:

[Joel] suggests that after five years, mild-mannered Minnesotans have finally learned that a gun tucked into a waistband isn’t the sign of a blood-hungry nutcase.

“It’s like the gay couple that moves in down the block,” he says. “At first some people get upset, but after a while it’s just like, ‘Yeah, that’s just Joe and Todd.'”

Soon, he made an impression on me in another way when he cost me $99. Actually, if you read that post, Joel didn’t really cause the problem — MovableType just flaked on his avatar photo (above) for some reason — but he nevertheless apologized in the comments. That fits my impression of Joel: I’m pretty sure he knew I was kidding around, but he nevertheless responded by being courteous. Joel is quite capable of being a pain in the ass to people who’ve got it coming, but he’d hate to be a pain in the ass unintentionally.

A couple of months later, I invited Joel to be a co-blogger here. I did that based on the strength of his comments at other blogs. What I didn’t realize at the time is that Joel was an actual science fiction author. That’s right. I had asked a published author to come write for me for free. Joel, however, graciously accepted and went on to write 39 posts for me before moving on.

It’s going to be kind of quiet around here without him.

I’m not sure, but I think I may have just taken a huge step toward solving one of the toughest problems in criminal law: The meaning of reasonable doubt. It is famously difficult to define this standard for members of the jury, which is a problem, because they’re supposed to use it to decide if someone is guilty.

Scott Greenfield brought this up again a couple of months ago in connection with a California court ruling:

Yet, even this resort to once-pop culture doesn’t overcome the utterly amazing reality that we persist in using a phrase to decide whether a person goes to prison, gets executed, that defies definition. We don’t know what it means.  Jurors don’t know what it means. Every time a judge or lawyer makes an effort to explain it, he ends up making things worse, obscuring it more.

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them. We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them. It’s not their fault. Not in the slightest. It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

The irony is that our inability to arrive at a viable definition reflects our own inability to agree on what this phrase means, or how one could possibly explain it to others.

As you’d imagine, leaving one of the most important parts of a juror’s duty completely undefined tends to make the whole rendering-a-verdict process very unpredictable.

(I’ve often wondered if that was the intent, if the unpredictability of individual cases somehow improves the system as a whole. There are biological mechanisms and scienctific processes that make good use of the effects of randomness. However, I haven’t been able to form concrete theory of why randomness would be good for our justice system.)

Jeff Gamso dropped by in the comments and wrote this:

Back when I was in Texas, judges weren’t even supposed to define reasonable doubt. That left prosecutors free to tell jurors something like “reasonable doubt is a doubt for which you can give a reason,” which is horrible. More than one criminal defense lawyer gave what’s always seemed to me to be the clearest definition. “You’ve got to be real sure.”

Gamso knows a hell of a lot more about these things than I do, but the definition that “reasonable doubt is a doubt for which you can give a reason” has great appeal for me because it’s an operational definition. That is, it doesn’t just define reasonable doubt, it defines a test procedure that jurors can perform to determine reasonable doubt. Operational definitions tend to make it much easier to reproduce a result. Perhaps this definition leads to injustice, but it’s the right kind of definition for an important decision making process.

A little later, my Nobody’s Business co-blogger Rick Horowitz posted on his blog in attempt to exhume the original meaning:

In any event, I disagree with Scott Greenfield that the problem is the phrase’s inherently undefinable quality. The phrase is not indefinable; it’s just that most of us have lost touch with the historical roots that could lead to a clear understanding of the phrase.

Our problem today, contra Greenfield, is not, as he declares, that the concept “defies definition.” While it’s true that “we” (I assume he means, at least, “most lawyers”) don’t know what it means; juries don’t know what it means; and judges are too fucking stupid and ignorant of history to explain it, the concept itself no more defies definition than does any other concept from the past that ordinary students make sense of every day.

Rick then goes on to link “beyond a reasonable doubt” with “to a moral certainty” and quotes Barbara J. Shapiro:

Initially, there had been little need to construct a rationale for the truth-finding capacities of juries who reached verdicts based on their own common sense and knowledge of the facts. As the role of witnesses increased in the late medieval and early Roman period, the problem of the credibility of second-hand reports of facts that had become central to theologians, naturalists, and historians became central to legal theorists who borrowed conceptual elements from the new empirical philosophy.

Ah, “the new empirical philosophy.” I assume that would be science. This appeals to me. I have some knowledge of the history and current meaning of scientific knowledge.

Throughout [the development of the standard of proof for criminal trials], two ideas to be conveyed to the jury have remained central. The first idea is that there are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible. The second idea is that, in this realm of events, just because absolute certainty is not possible, we ought not to treat everything as merely a guess or a matter of opinion. […] The highest level of certainty in this realm in which no absolute certainty is possible is what traditionally has been called moral certainty.

Shapiro goes on to give a jury instruction of sorts:

We can be absolutely certain that two plus two equals four. In the real world of human actions we can never be absolutely certain of anything. When we say that the prosecution must prove the defendant’s guilt beyond a reasonable doubt, we do not mean that you, the jury, must be absolutely certain of the defendant’s guilt before finding the defendant guilty. Instead, we mean that you should not find the defendant guilty unless you have reached the highest level of certainty of the defendant’s guilt that it is possible to have about things that happen in the real world and that you must learn about by evidence presented in the courtroom.

That sounds fascinating, but I wish Rick he had provided some more explanation of what Shapiro means, or perhaps even a few examples of how jurors could apply an instruction like this. (Shapiro’s paper itself does not appear to be available online for free, which means it might as well not exist for me.) As it is, however, I’m going to have to guess. And that may be a problem, because as stated, Shapiro’s standard seems impossibly high.

That’s because in the new empirical philosophy of science, there is no “highest” level of certainty in a statement of truth. What happens is that as more and more supporting evidence piles on, our level of confidence improves, but never quite reaches absolute certainty. So there is no highest level of certainty because more supporting evidence will always make us more certain.

But perhaps I am abusing the argument with too much modern scientific analysis. The statistical distributions that are used to analyze scientific certainty weren’t derived until the late 1800’s and weren’t put to use until the early 20th century, long after the concepts of reasonable doubt and moral certainty entered use in law. Moreover, no one actually expects jurors to think about guilt in mathematical terms. Perhaps instead of interpreting the “highest level of certainty” as a precise mathematical test, I should interpret it on the scale and resolution of normal human reasoning, using the normal human meaning of “highest level of certainty.”

That’s a bit vague, but there is an interesting implication we can make use of: If we are at the highest level of certainty, then no higher level is possible. The highest level of certainty is that level of certainty which cannot be improved upon, not even by the introduction of more evidence.

This leads us to a nice operational definition that jurors can use: If a juror believes the defendant is guilty, he can then conduct a thought experiment by imagining that the prosecution was allowed to re-open the case and produce additional evidence. If he can conceive of no possible evidence that would further increase his level of certainty of the defendant’s guilt, then his current certainty the highest level of certainty, and he can confidently vote Guilty. But if the case fails this test, if the juror can imagine additional evidence that the prosecution could resonably produce but did not, then he has to return a verdict of Not Guilty.

That sounds like it would work, but it still seems to set the bar awfully high. Would more than a tiny fraction of criminals ever be convicted? And what about DNA? The introduction of DNA evidence would make a lot of cases tighter, so does that mean that any case without DNA should automatically lead to a Not Guilty verdict? Again, that would make it awfully hard to convict anyone. I know I tend to root for the defense, but that’s an awfully tough standard for the prosecution to meet.

I imagine jurors could be instructed to consider only the kind of imaginary evidence that would be pertinent (e.g. DNA not needed when identity is not in doubt) and reasonable (e.g. no new DNA evidence in a 30-year-old cold case) but that would seem to require juries to have unrealistically comprehensive knowledge of crimes and criminal investigations. Then again, don’t we expect that of them now?

It feels like I’ve gotten somewhere with the concept of reasonable doubt, but I’m not sure if I’ve gotten anywhere useful.

And there it would have remained, if Scott Greenfield hadn’t posted about the acquittal of two cops for raping a woman in their custody.

For those who balk at the fact that the system always seems to work better when it’s a cop in the dock, another unfortunate reality, the answer isn’t to be unfair to cops, but to be more fair to all.

Suddenly, I saw the light and had my answer:

Proposed model jury instruction on reasonable doubt:

In considering your level of doubt, imagine that the the defendant is a police officer who has served the public for many years. And further imagine that this courtroom is filled with his fellow officers, in full uniform, who are here to support him. If convicted, he could be imprisoned and forced to spend months or even years locked in a cage with the same kind of villainous scum he has been arresting his whole career. Even if he receives no jail time, your finding of even the slightest bit of guilt will likely bring his police career to an ignominous end. You will have declared him a disgrace to the uniform. He will be kicked out of the best job he has ever known and never allowed to return. The brotherhood of police officers will turn their back on him. His friends will leave him, and he will forever lose the respect of his family. To find a police officer guilty is to ruin him.

Now, as it happens, this defendant is not a police officer, but the standard of reasonable doubt is exactly the same. If the evidence is not good enough for you to convict a police officer, it’s not good enough to convict this defendant either.

Of course, in a bench trial, this could be shortened to a procedure in which the defense attorney moves that his client be “tried as a cop.”