Some Speculation About the Google Truth Machine

Google recently announced they are researching the use of estimations of trustworthiness of websites to help prioritize results returned from search requests. This excites people who hope that pseudoscience and crazy conspiracy theories will get less attention, but it upsets people who are worried that the results will be biased:

“I worry about this issue greatly,” said Anthony Watts, founder of climate denying website “Watts Up With That,” in an interview with FoxNews.com. “My site gets a significant portion of its daily traffic from Google… It is a very slippery and dangerous slope because there’s no arguing with a machine.”

That’s from a Salon article by Joanna Rothkopf, who seems to think that keeping people away form Watt’s site is a great idea:

[…] some anti-science advocates are upset about the potential development, likely because their websites will become buried under content that is, well, true.

That not really fair. Most of the people who are concerned about Google’s research aren’t afraid they will lose out to the truth. They think they have the truth, and what worries them is that they will lose out to ignorance, confusion, and bias. Or they worry that the system is rigged to allow their ideological opponents to keep lying:

But others who follow media bias note that even the media watchdogs – let alone the sites used by the Google researchers like Wikipedia – are often biased.

“They’re very good at debunking myths if they upset liberals, but if it’s a liberal or left-wing falsehood, the fact-checkers don’t seem as excited about debunking it,” Rich Noyes, research director at the Media Research Center, told FoxNews.com.

I think this concern originates from a misunderstanding of what Knowledge Vault really is and how it works.

“Google should be commended for taking on the great task of fighting against propaganda and misinformation,” Nomiki Konst, executive director of The Accountability Project, told FoxNews.com.

“Hopefully Google will work closely with the FCC and journalism watchdogs in setting up standards to validate what is factual and who represents themselves as journalists,” Konst said.

Actually, Google will do nothing of the sort, because Konst’s statement is based on imagined capabilities that Knowledge Vault just doesn’t have. This is what you get when you interview people about something that they haven’t had time to learn about.

Meanwhile, Jack Marshall at Ethics Alarms is also concerned about where this could lead:

Can you see Google reducing the rank of websites that are consistently deceitful and misleading, like those claiming the women make only 77% as much as men because of gender bias, or that one in four women who go to college are raped, or that Mike Brown had his hands up […]?  I can’t.

I think probably not, but because of technical limitations, not ideological bias.

Will websites that assert religious beliefs be judged “untrue”? How about sites that assert that Islam is a violent and revolutionary religion? Determining which sites get the most traffic and links can be determined objectively; deciding what is true and factual requires complex and debatable distinctions between opinion and fact, metaphor, hyperbole, ideology, skepticism, and deceit […]. Will just facts be at issue, or deceitful arguments made specifically to make readers believe what isn’t true?

From a quick glance at the research papers, I’m pretty sure Google’s Knowledge Vault doesn’t come anywhere close to being able to untangle problems like those.

One of the things people are sometimes surprised to learn about search engines like Google is that they have very little understanding of what the text on a page actually means. (I’m talking here about mainstream public search engines, not highly experimental research projects, which may do slightly better.) At their most basic, search engines are all about recognizing words.

Search engines break down documents — web pages — into compact statistical descriptions of the words they contain. Mathematically, these descriptions define a vector space, and each document’s location in that space depends on which words it contains, how unusual the words are (“the” is pretty much ignored, “coprolalia” gets lots of attention), how many times the words appear in the document, where they appear in the document, how large the document is, and so on. As a result of the way these document vectors are constructed, the distance between two documents in vector space is inversely proportional to their similarity. Documents in the same region of the document space probably have similar topics.

When a user types a query into a search engine, it is essentially treated as a very short document, its vector is constructed, and the search engine finds its location in the document space. All the nearby documents are then returned as the result of the search, with the nearest documents at the top of the list.

Well, more or less. I’m giving an oversimplified description of how search engines match documents. There are actually a lot of refinements to the search process. For example, before document vectors are constructed, all the words have to be stemmed, meaning that related words like “walk”, “walks”, “walked”, and “walking” are all mapped into “walk” so that a search for “walk” is able to locate a document that only ever uses “walking.” The engine might also have a dictionary of synonyms, so a search for “teacher” will also find documents the only use “educator”, “professor”, or “schoolmarm”.

In addition, once documents are matched to the query, there’s more to prioritizing the results than just the distance metric in document space. For example, the document space is not uniform, and some types of documents will tend to group together because they are about the same thing. E.g. news articles about the upcoming Avengers movie will tend to all use the same groups of unusual words and phrases — “avengers”, “tony stark”, “hulk”, “thor”, “hawkeye”, “nick fury”, “ultron”. When searching for documents near a query vector, a search engine might identify nearby clusters of documents and give a boost to the rank of representative documents from the cluster, on the theory that documents about popular subjects are more likely to be relevant.

Another priority adjustment is the one that made Google famous: Page Rank. The folks who created Google realized that the World Wide Web offered them more information about a document collection than just the content. It offered links. This was important because links were created by humans, and the human ability to read and understand documents is the gold standard. So if a large number of humans thought a document on the web was important enough to link to, Google gave it a more prominent position in the search results. This was a revolution in web search engines, and it made Google the preferred starting point on the web. (And launched the search engine optimization industry.)

Google watchers are also pretty sure that Google makes a other adjustments to results. It seems to prioritize sites that have been around a while, presumably on the assumption that brand-new sites are suspect. On the other hand, Google seems to love new content on established sites, probably for its novelty and for signs that the site is being maintained and kept up-to-date. Google also penalizes sites that break its rules, such as by selling links, and they seem to have ways of spotting link farms of websites created solely for the purpose of jacking up Page Rank.

This latest idea, rating pages according to an estimate of trustworthiness, is just another attempt to refine the search results. It works by attempting a more sophisticated understanding of the content of web pages than just recognizing words. Knowledge Vault uses modern natural language processing algorithms to extract some small amount of meaning from the text in the form of relations, which are three-part tuples consisting of subject, the name of a property of that subject, and an object. For example:

<Illinois,subdivision of,United States>

<Illinois,capital,Springfield>

<Barack Obama,Senator of,Illinois>

<Barack Obama,birthplace,Honolulu>

(I don’t think Google’s Knowledge Vault is available online, but if you want to get an idea of how well relation extraction works on real document, you can try out a demo of the AlchemyLanguage relation extraction API, which is part of IBM’s Watson project. Just copy and paste a block of text or feed it the URL of a web page and you can explore what it figures out. I find that the Entities, Concepts, and Relations tabs are pretty interesting. It’s nowhere near human quality, but it’s better than I would have thought.)

Once the Knowledge Vault has a collection of these relations, it needs a way to figure out which ones are true. A simple way to do that is to start with collections of relations from a trustworthy source. Google starts with a collection of curated databases which are believed to be fairly reliable, such as Freebase and the various Wikimedia projects.

(To get an idea what kind of data is stored in these knowledge collections, check out the entry for former President Bill Clinton at the open source Freebase and Wikidata databases and at the commercial WolframAlpha database.)

Google can then compare relations extracted from web pages against relations in the trusted databases, and do some analysis to estimate the trustworthiness of the web pages: Pages which get a lot of known facts wrong would be given a low trustworthiness score, and they could be pushed down in the search results, relative to more trustworthy pages.

A lot of the relations extracted from web pages will be new relations which are neither proved nor disproved by the trusted data. However, if the KnowledgeVault keeps finding the same new relations present on pages it has ranked as trustworthy based on the relations it does know about, then it can start to rank those new relations as true as well. Then it can begin to use them in the trustworthiness evaluation process for other new pages. Basically, trustworthy pages can be used to identify true facts, and true facts can be used to identify trustworthy pages, and this can be repeated over and over to expand the fact repository while keeping it anchored to a few million trusted facts drawn from curated databases.

The result will be clusters in the document space of known trustworthy pages. When Google’s search engine maps a query into that space, rather than taking the strictly nearest documents, it can reach out into one of the trustworthy clusters in search of a better result.

Now we can begin to consider some of the concerns raised above. As you can see from the simplicity of the relations and the ranking system, Google is not going to make “complex and debatable distinctions between opinion and fact, metaphor, hyperbole, ideology, skepticism, and deceit.” Nor will they “work closely with the FCC and journalism watchdogs” to set all this up. The process (assuming Google decides to use it) is far too simple and mechanistic for any of that.

Let me give you an example of how it might work. Lately my Twitter timeline has been filled with inane arguments about whether President Obama loves America. If these were web pages, how would Google decide whether to boost the “Obama hates America” pages or the “Obama loves America” pages?

Well, if your web page says, “Obama was born in Honolulu and he loves America,” and my webpage says “Obama was born in Kenya and he hates America,” Google would see two relations from each of us about the entity Obama, one about his birthplace, and one about his feelings toward America. Since Obama’s birthplace is in the baseline database, Google would recognize that your website has one true fact about Obama and mine has one false fact about Obama, which would make Google trust your page more than mine. That trust would also carry over into the other relation on your page, and Google would ever so slightly begin to believe that that Obama loves America.

(Actually, the Knowledge Vault algorithm has to find multiple verifiable facts on a page or website before it will render a judgement on its trustworthiness, but I’m simplifying.)

If hundreds or thousands of websites weighed in on this debate, and if the pages asserting that Obama loves America had significantly more true facts and fewer false ones than the pages that assert that Obama hates America, the Knowledge Vault would eventually start to think of <Obama,loves,America> as a true fact and <Obama,hates,America> as a false one. Soon any page from which <Obama,loves America> can be extracted would be ranked higher than an otherwise equal page from which <Obama,hates,America> can be extracted.

Does that seem crazy to you? That Google would find a page more trustworthy because of what is pretty clearly an opinion? I think it actually makes some sense when you remember three important things. First, Google’s trust adjustments are a statistical inference from data: For whatever unknown and unknowable reason, web pages expressing that opinion have had more checkable facts correct than web pages expressing the opposite opinion, so it seems reasonable to assume that the uncheckable facts are also more likely to be correct.

So for many of the statements of fact that Jack asks about, “…women make only 77% as much as men because of gender bias…one in four women who go to college are raped…Mike Brown had his hands up…Islam is a violent and revolutionary religion” the answer appears to be that Google will tend to judge these statements as true if and only if Knowledge Vault tends to find them on pages that have other true statements. Honest pages are trusted to contain honest information.

The second thing to keep in mind is that Knowledge Vault’s fact database would be only one of several factors that determine a page’s search engine result placement. Google is secretive about its algorithms, but the search engine certainly looks at similarity scoring from the document vector space and Google Page Rank. Google watchers also believe that Google scores pages for load speed, technical correctness, layout clarity, security, and an especially secret method for detecting black hat search engine optimization tricks. If Google does add Knowledge Vault trustworthiness scores to the mix, it will likely only adjust the results computed by other methods.

The third and final thing to remember is that Google’s search engine has one overriding goal: To return results relevant to the user. By definition, true relevance can only be evaluated by humans, so before Google rolls out a search algorithm that uses Knowledge Vault, they will first make it available to their search quality raters — a rotating pool of several thousand part-time workers all over the world — who will compare its results side-by-side to the results produced by the current algorithm.

If it does a better job and returns results they consider relevant, Google will next feed results from the new algorithm to a small percentage of live search users and analyze how they click on links. If the change appears to have a positive effect, an engineering team will make the final decision on whether to roll out the new algorithm with its new trustworthiness metric.

Knowledge Vault doesn’t have to be right all of the time or even most of the time. It only has to be right enough to improve search performance. Knowledge Vault doesn’t have to be perfect. It just has to make Google search better.

Finally, Jack Marshall asks this question about Knowledge Vault:

We just were informed that “cholesterol is not as bad for you as we once thought,” after years of being told that consuming eggs, milk and steak would kill as for sure. There were nutritional and economic consequences of that “fact.” Would Google’s new search methods have buried the assertions of contrarian scientists, who were claiming this years ago, as liars?

I dunno. Maybe. Remember that Knowledge Vault assumes that truths imply trustworthiness and trustworthiness implies truths. If the websites expressing the contrarian opinion on cholesterol appeared trustworthy in all other ways, if they contained statements just as likely to be rated truthful as statements on websites that demonized cholesterol, then Google would probably give them equal weight.

The Knowledge Vault trustworthiness estimation algorithm is partially circular and self-referential — trustworthy web sites contain true facts, and true facts are those contained on trustworthy websites — so it would likely have a tendency to reinforce orthodoxy. (The Page Rank and clustering algorithms have similar tendencies for similar reasons.) It would be nice to have information retrieval technology that didn’t have these limitations…but then again, it would also be nice to have human beings that didn’t have these limitations.

After all, the cholesterol contrarians Jack’s talking about weren’t marginalized by a search engine, they were marginalized by the consensus of doctors and dieticians and nutritionists, perhaps for reasons that seemed good at the time. It’s not realistic to expect Google’s search engine to pore through the mass of scientific publications and pick out truths that have gone unrecognized by almost the entirety of the scientific community. Artificial intelligence that powerful is still in the realm of science fiction.

Besides, if you want to find out about the cholesterol controversy, you only have to Google “cholesterol controversy.”

The Future of Net Neutrality?

So, I hear the FCC is going to give us net neutrality:

For the stuff that matters to us most, as an online community: the order bans paid prioritization, throttling and blocking. That means that outright blocking of content, slowing of transmissions, and the creation of so-called “fast lanes” available on a pay-to-play basis are banned. Daily Kos will be delivered across the networks as easily as the New York Times’ website or Fox News’s or RedState (it still exists! Who knew?) and you and we won’t have to pay more to have it delivered to your screen.

Of course, net neutrality does nothing about what I see as the biggest problem with internet service, which is the lack of competition between local providers. In my area, unless you’re willing to put up with slow speeds, there’s only one provider. That kind of monopoly power is never good for customers. But net neutrality isn’t going to fix that.

Nevertheless, although I’m not convinced net neutrality is necessary — it’s not as if there’s a history of abuse without it — I don’t think net neutrality is a bad thing by itself.

I am, however, a little concerned about what else the FCC is going to do. Before the FCC could enact net neutrality, they first had to reclassify the internet as a Title II telecommunications service, which gives the FCC a lot more power over it than they had before. They can use that power to enact net neutrality (unless they lose in court again), but they can also use that power in other ways.

Here’s what the FCC says about that:

This includes no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application of only those Title II provisions found to directly further the public interest in an open Internet and more, better, and open broadband. Nor will our actions result in the imposition of any new federal taxes or fees; the ability of states to impose fees on broadband is already limited by the congressional Internet tax moratorium. This is Title II tailored for the 21st century.

To which the folks at Daily Kos respond:

No tariffs. No taxes. No rate regulation—the FCC is not setting prices for internet service. Nothing that will cost ISPs more to provide the service they keep promising their users. All of those things telecoms have been screaming about are not happening.

To which I respond: Yet.

Because we’ve seen regulatory agencies get out of control before. And I have a few predictions.

Pretty much all of those things the FCC says it isn’t going to do are things it is in fact authorized to do under the Telecommunications Act. Unless this power grab is overthrown by Congress or the courts, the FCC can do any of those things whenever it wants. Or whenever the next President wants them to.

As is usually the case, they’ll probably try to hide it behind good intentions. So they won’t just impose a tax on internet service. Nobody wants that. Instead, they’ll offer a program of some kind — low-cost internet service for the urban poor and underserved rural areas, programs for the schools, something that sounds nice — all of which will happen to be financed by a small tax on the internet.

Then there’s the question of whether the FCC will try to regulate internet content. Right now, nobody’s seriously talking about that, and the internet is pretty much wide open to almost anything. But how long will that last with the FCC in charge? Remember, this is the organization that fought with CBS over Janet Jackson’s right nipple for eight fucking years.

What do you think will happen the next time there’s a moral panic over something on the web? What are the chances that some politician will see a chance to attract attention to himself by “making the internet safe for children”?

I think there are a few issues that are ripe for exploitation by some tinpot FCC commissioner:

  • Content from terrorist organizations, for some surprisingly expansive definitions of “terrorist” and “organization.” Also maybe “content” and “from.”
  • Human trafficking. By which I mean escort websites and forums.
  • Revenge porn. This is a hot topic, and what aspiring politician wouldn’t want to be seen fighting something like that?
  • Online gambling.

I wouldn’t be surprised if rather than going after infringing websites directly, they instead just strongly encouraged internet service providers to block content that they know, or should have known, was in one of the disallowed categories. This makes the ISPs do all the work and makes it harder to get a First Amendment claim going.

And then there’s always the problem of regulatory capture. The FCC’s posture right now is one of fighting to keep internet providers in line, but it’s only a matter of time until they start protecting providers from competition. They won’t call it that, of course. They’ll probably call it “protecting consumers.” They’ll impose lots of regulatory requirements, all justified in the name of consumers, and all harder on new providers than on the established giants that have Compliance departments filled with former FCC staff.

I wouldn’t be surprised if “equal opportunity” makes an appearance as well. Some new player will figure out a neat trick to provide better or cheaper service, and naturally they’ll want to pick off customers in the more lucrative markets, but the FCC will accuse them of discriminating against poor minorities and insist they serve a much larger area, which will make their business plans unworkable. The poor minorities still won’t get the new service, but neither will anyone else.

If history continues to repeat itself, eventually the FCC will directly manage the market. Before any internet service provider (new or old) can add capacity in a market, it will first have to prove to the FCC that there is a “unmet need.” Existing providers will be allowed to contest this need — they may even have seats on the committee making the decision — thus ensuring that no actual competition ever takes place. Nobody will admit that’s what they’re doing, of course. They’ll probably call it “preventing wasteful duplication” or “stabilizing the market,” or if things have gone particularly badly, “restoring public confidence in internet providers.”

So those are my predictions. Unless this gets stopped pretty soon by the courts or Congress, I expect taxes within eight years (sooner if President Elizabeth Warren gets her way), content regulation within ten years (sooner if President Jeb Bush puts Rick Santorum on the FCC commission), and regulatory capture within…well, I expect regulatory capture to start almost immediately, but it could take a few decades to drive the industry into the ground.

Who Should Control Women’s Sexual Desire?

Sprout Pharmaceutical is again asking for FDA approval for flibanserin, a pill that they say will help women experiencing low levels of sexual desire. In a New York Times op-ed, sex educator Emily Nagoski is skeptical:

But the biggest problem with the drug — and with the F.D.A.’s consideration of it — is that its backers are attempting to treat something that isn’t a disease.

No, no, no. This is an argument I really want to die. I don’t mean to pick on Ms. Nagoski, but there’s no need to get hung up on whether something is a disease when investigating drugs that change it. That’s an approach that will lead to pain, heartache, and possibly jail time.

Here’s the issue that has her concerned:

Flibanserin purportedly treats a condition called hypoactive sexual desire disorder in women. But H.S.D.D. was removed from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders in 2013, and replaced with a new diagnosis called female sexual interest/arousal disorder, or F.S.I.A.D.

Why the change? Researchers have begun to understand that sexual response is not the linear mechanism they once thought it was. The previous model, originating in the late ’70s, described a lack of “sexual fantasies and desire for sexual activity.” It placed sexual desire first, as if it were a hunger, motivating an individual to pursue satisfaction. Desire was conceptualized as emerging more or less “spontaneously.” And some people do feel they experience desire that way. Desire first, then arousal.

But it turns out many people (perhaps especially women) often experience desire as responsive, emerging in response to, rather than in anticipation of, erotic stimulation. Arousal first, then desire.

Both desire styles are normal and healthy. Neither is associated with pain or any disorder of arousal or orgasm.

To my inexpert ear this seems like a plausible bit of psychology, and since Emily Nagoski is a credentialed expert on human sexuality, I’m sure she knows a lot more about female sexuality than I do. [Insert self-deprecating joke about not understanding women here.] And what she’s talking about should probably be a very important consideration for any woman thinking about taking a pill like this.

However, just because something is normal or natural doesn’t mean we shouldn’t change it. About 20 years ago, there was a major controversy over the safety of silicone breast implants, and the FDA was stepping in to regulate them. Virginia Postrel of Reason magazine wrote an editorial about that which has stuck with me over the years, and which seems relevant here:

Something different is going on with breast implants: They are frivolous, and they are biological. They are overt attempts to overthrow nature, to use the mind to reshape the body, to alter genetic destiny without giving a good reason. They are not “vital needs,” like fibers, key boards, or electricity.

[…]

Traditional medicine and its regulatory progeny disapprove of risks, except to restore what’s “normal.” When cosmetic surgeons tried to define flat-chestedness as a disease–the better to cram breast augmentation into the healer paradigm–they looked like manipulative fools. Their article became a smoking gun to feminists who saw implants as a patriarchal plot. But the very attempt shows what’s “wrong” with implants in the eyes of the law: They’re designed not to fix a disease but to improve what’s normal. Repair is OK; improvement isn’t.

This bias against changing things that are normal is complicated by the fact that we have a history of deciding or discovering that things previously considered normal are in fact subject to medical intervention. Humans have presumably had allergies forever, but we only really began to recognize them as such about 100 years ago, and we now have a lot of different treatments. It’s natural for our eyes to lose their ability to focus clearly as we get older, but nobody suggests that people getting Lasik eye surgery would be better off accepting their “different way of seeing.” We used to think that even severe dementia was just a normal part of getting old, until we identified Alzheimer’s disease. Now instead of just accepting the decline in mental function, we’re working on treatments.

Or what could be more normal than childbirth? And yet we spend millions of dollars on contraceptives to prevent it. Except for women experiencing the perfectly common problem of infertility — they spend millions of dollars on drugs, treatment, and IVF to get pregnant. We’ve also found ways to reduce the natural pain of childbirth. All of these improvements on nature were highly controversial when they were first introduced. But we got used to them.

Nagoski is concerned that women will feel pressure to take a pill they don’t need:

But I can’t count the number of women I’ve talked with who assume that because their desire is responsive, rather than spontaneous, they have “low desire”; that their ability to enjoy sex with their partner is meaningless if they don’t also feel a persistent urge for it; in short, that they are broken, because their desire isn’t what it’s “supposed” to be. What these women need is not medical treatment, but a thoughtful exploration of what creates desire between them and their partners.

There’s certainly a history of women being pressured into dubious ways to “improve” themselves, from high-heeled shoes to corsets to cosmetic surgery and unnecessary hysterectomies, so any women considering any kind of medical intervention should do her research. And I can understand the the need for the thoughtful exploration she describes (there’s more detail in her article and on her blog), but she goes too far when she argues against any medical treatment.

The efficacy of flibanserin is in question, and it may have some troublesome side effects, so I could understand why she’d recommend against that drug in particular, but Nagoski objects to the idea of using medicine to change how sexual desire works. This comes way too close to some of the “purity” arguments that have been used against psychoactive medications over the years.

Depression is another one of those treatable conditions that used to be considered normal. When depressed people weren’t being asked “Why can’t you just cheer up?” they were being told to live with it and things will get better. They were told that plenty of depressed people manage to live successful lives, and that they should learn to accept themselves as they are. Just keep soldiering on. Suck it up. None of this was really very helpful. In all fairness though, there weren’t any better alternatives.

That changed with the invention of antidepressants, especially with the modern drugs that affect neurotransmitters such as serotonin, dopamine, and norepinephrine. (Flibanserin acts on those neurotransmitters as well.) They’re not always effective, and they can have side effects, but when they work, they can greatly improve the lives of people suffering from depression.

And yet people taking antidepressants are still told by well-meaning friends and family (or even strangers) that they should try to fight depression in other ways — eat better, exercise more, meditate, find a hobby, get out and meet people, try to look on the bright side — rather than “depending on a drug to make you happy.” This often comes with a sizable dose of smugness: “Look at me, I’m happy, and I don’t take drugs.”

There’s also been a general backlash against the market success of antidepressants, with a lot of whining about the number of people on Prozac, the “over-medication” of American society, and the way big pharma is pushing their drugs on us by getting everything classified as a disease. I’m sure there’s been some of that, especially with captive populations like school children, where I’ve heard accusations that ADHD is over-diagnosed. On the other hand, if your child gets the drugs and the quality of his life improves, how much does it matter if he really had ADHD or was just fidgety?

Some of the reaction against pharmaceutical solutions seems to have its origin in the same anti-drug prejudice that fuels the War on Drugs — the attitude that using drugs for anything other than treating a disease is evil. This is why someone with a diagnosis of ADHD or narcolepsy can get Adderall from Walgreens, but college students trying to study harder have to order it from sketchy online pharmacies in Hong Kong. And when factory workers on long shifts use methamphetamine (essentially the same drug) we call them meth addicts and put them in jail.

Apparently we still haven’t learned our lesson about what happens when we pathologize normal sexual functioning.

In one extreme example, medical professionals once took seriously the idea that homosexuality was a disease in need of a cure.

[…] Now, of course, only a fringe minority of the medical community would suggest that sexual orientation is anything other than a normal aspect of human sexuality.

Let me respond by describing another human sexual aspect that is currently treated as a disorder: Gender dysphoria. Some men aren’t happy being men. They’d rather be women. We could tell them that being born a man is their fate and they better straighten up and act normal. Or we could tell them that lots of people have gender identity problems and learn to live with it. We could even tell them to settle for wearing wigs and makeup and women’s clothes.

But as it turns out, we have at least a partial “cure” for being male. We have hormones to change their fat distribution and enlarge their breasts. We have lasers and electrolysis to remove unwanted hair, and we have dermabrasion to smooth their skin. We have surgical procedures to reduce their adam’s apple, change their voice, enlarge their breasts, and change the shape of their face, hips, buttocks, and genitals. Half the people in the world are male, and there’s nothing wrong with that. But some of them don’t like it, and within the technological limits of our civilization, we offer them the ability to change.

This analogy between desire style and sexual orientation is imperfect: There is no reason to suspect that responsive or spontaneous desire is innate. In fact all desire is somewhat responsive, even when it feels spontaneous. But Dr. Heath and Sprout are both part of the long history of trying to call “diseased” what is simply different.

And Emily Nagoski is in danger of making herself part of the long history of telling people they should learn to live with things they don’t like.

When a woman experiencing responsive desire comes to understand how to make the most of her desire, she opens up the opportunity for greater satisfaction. Outdated science isn’t going to improve our sex lives. But embracing our differences — working with our sexuality, rather than against it — will.

I suspect that this is good advice. But there’s a difference between advice and policy. The FDA isn’t about giving advice, it’s about controlling what medications are available. There’s a difference between giving women the information they need to make an intelligent choice and giving the FDA the power to take that choice away.

Let me quote Virginia Postrel again:

The debate over breast implants is only incidentally about the venality of lawyers or the benefits of a C cup. It is about who we are and who we may become. It is about the future of what it means to be human.

The debates about flibanserin, like the debate about breast implants, is about whether or not women get to have control over what they want to be.

(Hat tip: Maggie McNeill.)

Random Thoughts About Hillary Clinton’s Email

Hillary Clinton is taking some heat for using her own private email account for her State Department email. I haven’t been following the story very closely, but I have a few random thoughts:

  • I keep hearing that she turned over 55,000 pages of email. Pages? Who measures email in pages? People who use email either talk about the number of messages, or they talk about how many gigabytes it takes to store the messages. Nobody who actually uses email worries about the page count when it’s all printed out. Please don’t tell me she turned over actual printed pages…or a PDF.
  • What about legal hold? If somebody sued the State Department or Hillary Clinton personally, could the server administrators lock down the messages so no one deleted them in case they needed to be produced in discovery? Would they have been produced in discovery? How about a Freedom of Information Act request? A Congressional inquiry? In cooperation with the State Department’s Inspector General?
  • It’s entirely possible that Hillary’s private email server is every bit as secure as the State Department’s server. Remember that we’re talking about ordinary email — the kind that Hillary and the department’s staff could access from Blackberries, smartphones, or laptops. There’s a limit to how secure that kind of service can be, and it’s not hard to find the technical talent to set it up and run it right. The Clintons easily have the resources for this.
  • The State Department’s important secret messages aren’t sent over the ordinary office email system. Secure traffic goes over some kind of secure network like SIPRnet or JWICS. And yet Chelsea Manning compromised both of those networks and leaked hundreds of thousands of messages to wikileaks. So I’m guessing the State Department’s non-secure email meets a very low security standard. It’s been hacked before. It’s possible Hillary’s private server was better secured.
  • It’s also entirely possible that Hillary’s private email server has crap security. Maybe the Clintons got friends and political allies to setup the email system. (“They designed that cool campaign website, so they must know a lot about computers!”) In that case, 12-year-old script kiddies in Singapore could have been reading her email for years. The State Department’s email security may not be very good, but at least they probably have an IT auditing process.
  • Since her email address appears in every email message she sends or receives, the identity of the server would not have been a secret. (Naming it ClintonEmail.com doesn’t help.) It would have been a target for hackers and intelligence agencies.
  • Hillary says there were no security breaches. What she really means is that there were no security breaches discovered.
  • Hillary’s explanation that she did it for convenience is plausible. I’m not sure, but it’s possible that the limited mobile email clients at the time could not connect to more than one email service, so using a single service for work and home email would be more convenient than carrying two devices.
  • This sort of thing would be outrageous if done in a private corporation. Can you imagine trying to explain to a judge or a regulatory agency why all mail to and from the CEO uses a private server? Can you imagine trying to convince a judge or a regulatory agency that it was not done to keep some evidence hidden?
  • Did no one tell her this was a bad idea?
  • It’s not going to affect Hillary Clinton’s chances in the 2016 Presidential election. If you’re not mad at her for everything else she’s already done, then it’s unlikely that this will be the tipping point for you to turn against her. And if you already hate her, this just confirms everything you believe. Nobody will change their mind.

 

The Crime You Dare Not Stop

I’ve always thought that “possession” was an odd type of crime. Legal possession is such a passive concept. It doesn’t seem right to even call it a behavior. I’m pretty sure you can be guilty of possessing contraband even when you are literally asleep in bed. That just doesn’t sound harmful enough to justify punishment.

And consider what happens if the police bust you for possession of marijuana: The police will confiscate your stash. At that point they are the ones who are in possession of marijuana, aren’t they? Why is it that it was illegal when you did it, but it’s legal when they do it?

Because the law says so, I guess, but why? Cops can’t legally break into someone’s house and steal their jewelry or force women into having sex with them, so why is possession different? What’s the principle here? Clearly, since cops are allowed to do it, possession of marijuana doesn’t actually cause whatever social harm the law is seeking to prevent. So why is possession still illegal?

I think the answer has to be that possession is a proxy for the behavior that causes actual harm. In the case of marijuana, that would be the harm caused by smoking marijuana. (As a libertarian, I don’t see any net social harm from smoking marijuana, but let’s ignore that for the sake of argument.)

The problem — for the drug warriors, anyway — is that it’s hard to catch people smoking marijuana because it only takes a few minutes and they can do it in hiding. So the legislatures have moved backwards on the causal chain to criminalize a precursor act that is easier to detect: People generally possess marijuana for a lot longer than they smoke it, and they often do so in relatively public places where police can observe them, question them, and search them. Thus criminalizing the possession of marijuana serves as an imperfect way to attack the problem of smoking marijuana, at the cost of criminalizing behavior that is not really harmful.

This explains why it’s not a crime for cops to possess marijuana after a bust: They aren’t going to smoke it later.

Other crimes of possession can also be justified by their relation to harmful acts: We criminalize felons possessing guns because we don’t want them murdering people, we criminalize young people possessing cans of spray paint because we don’t want them vandalizing buildings with graffiti, and we criminalize possessing open containers of booze in cars because we don’t want drivers to drink.

The exact conditions under which it’s okay to punish people for harmless behavior in the name of stopping a related harmful act is a moral and ethical question worthy of exploration, but for now I’d like to look at a more practical problem. Because the behavior that is illegal is distinct from the behavior that is harmful, scenarios can arise where the law doesn’t really make sense.

For example, it’s illegal to possess child pornography. Clearly, mere possession is harmless, as proven by the fact that police and prosecutors can possess child pornography in the process of sending people to jail for it. Possession of child porn is nevertheless illegal because we don’t want people to look at it.

Houston criminal defense lawyer Mark Bennett gives an example of how this can lead to a bizarre dilemma:

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law.

This is not just a hypothetical situation. At least one lawyer has been prosecuted for destroying child pornography on a client’s computer.

Lawyers wouldn’t be facing this kind of conundrum if it weren’t for the crime/harm separation that is inherent in possession laws. If possession of child pornography wasn’t a crime, then deleting it from the hard drive wouldn’t be destruction of evidence of a crime. It would arguably even be crime prevention, since deleting it prevents people from looking at it, just as flushing marijuana down the toilet prevents people from smoking it.

(I’ve never heard of someone being charged with destroying evidence of pot possession by smoking it, but people do get charged with tampering with evidence for eating drugs when the cops pull them over.)

On the other hand if the crime and harm of possessing child pornography were linked, if mere possession somehow did cause actual harm, then deleting the pornography from the drive would be stopping a crime in progress. The lawyer would be a crime fighter.

If you have trouble thinking about possession being harmful in that way, try imagining it this way: The lawyer visits the client’s house, but instead of learning that the client has child pornography, he discovers that the client has an actual child, locked in a cage in the basement. Alarmed, the lawyer frees the child, who immediately runs off. The child is confused, however, and is never able to identify his captor or the location he was held. By releasing the child, the lawyer has in a sense obstructed the ability of the police to charge his client for kidnapping, yet no sane person would argue that he shouldn’t have done it.

I’m not going so far as to say that possession should never be a crime, but the fact that possession crimes don’t work that way is a sign that possession is a strange kind of crime, one where stopping the crime is also a crime. I’m not sure how to fix this, but I’m pretty sure it’s broken.

Racism Detected In Ferguson

New York Times reporter Matt Apuzzo says that the Justice Department’s investigation into the Ferguson, Missouri police has found extensive racial problems:

Police officers in Ferguson, Mo., have routinely violated the constitutional rights of the city’s black residents, the Justice Department has concluded in a scathing report that accuses the officers of using excessive force and making unjustified traffic stops for years.

The Justice Department […] says the discrimination was fueled in part by racial stereotypes held by city officials. Investigators say the officials made racist jokes about blacks on their city email accounts.

This is the official answer to the question of why the protestors in Ferguson were so quick to assume that Darren Wilson was a racist murderer. The department’s racial problems would have been obvious to black people in Ferguson. They would have seen it in the way they were treated, the things that were said at the side of the road when the police stopped them, the way cops treated black people on the street. It would have been a regular topic of discussion in the black community.

So when the story of the Mike Brown shooting broke in Ferguson, this is how it looked: A member of a police department with a history of racism, equipped with a sidearm, possibly body armor, and several non-lethal weapons, confronts an unarmed and comparatively vulnerable black man on the street, and despite having a car which can be used for either cover or escape, he gets out and chases the black man down the street and shoots him multiple times, killing him. You can’t blame anybody for at least suspecting that this was a racially motivated killing.

As it happens, after a thorough investigation, which probably wouldn’t have happened without the protests, it turns out there’s some convincing evidence that Mike Brown attacked Officer Wilson. It appears to have been a reasonably justifiable shooting. But in the early days it only made sense to assume the worst — that the shooting was part of the long racist pattern of policing in Ferguson.

The Tyranny of the Well-Meaning

Jack Marshall has proclaimed yesterday “Remember What Drugs Cost Society Day” in honor of actor and comedian John Belushi, who died of a drug overdose in 1982. It’s worthwhile to remember the dead, and it’s important not to forget that recreational drug use can lead to tragedies. Had Jack left it at that, I wouldn’t have any objection, but Jack can’t leave it at that.

The District of Columbia is poised to completely legalize pot, which will be the most ringing of government endorsements of societally destructive personal conduct, in a malfunctioning culture that should not be placed at further risk.

I find it amazing that Jack thinks that by making something no longer a crime, the government is giving it a ringing endorsement, as if there is no middle ground for conduct that is undesirable but nevertheless tolerated in a free society. One of the most vivid descriptions of the banal evil of totalitarianism is that “everything that is not forbidden is compulsory.” Endorsement is not truly compulsion, but in conflating legalization with endorsement, Jack is nevertheless seeing the world in an oddly totalitarian frame.

One of the errors in Jack’s reasoning is to think that the path from ethics to policy is as simple as “behavior X is bad, therefore we should make behavior X a crime,” without giving due consideration to the costs of doing so. Those costs can be especially high when it’s not just behavior X that is criminalized, but a superset of behavior X and a bunch of other behaviors Y and Z that are thought to be somehow related to behavior X.

John Belushi died of an overdose of heroin and cocaine, but the anti-drug laws don’t just prohibit giving someone an overdose of those drugs. They make it a crime even to use these drugs even in safe quantities. In fact, the mere sale and possession of these drugs is prohibited. And Jack is arguing that Belushi’s heroin and cocaine use is somehow relevant to marijuana law, even though marijuana is a completely different kind of drug. We’ve even gone so far as to criminalize certain cash transactions because they might be used to hide money that might have come from selling illegal drugs. And we allow police to violently invade people’s homes when they are suspected of possessing both drugs and toilets down which to flush those drugs. The people on this page are dead because we’ve followed a policy of outlawing drugs without considering all the consequences.

It also makes me furious that a talent like [John Belushi] gave himself so little time to entertain us, because he killed himself with an insatiable appetite for illegal drugs.

While it’s tragic that John Belushi died, it seems odd to lament the loss of being entertained by him in a post advocating continued drug criminalization. John Belushi wouldn’t have had much time to entertain us if he’d been in prison on drug charges. And let’s be honest, most of the rest of the writers and cast of Saturday Night Live would have been right there with him in the cell block. I’m guessing getting raped in the showers would have killed their sense of humor.

(Yes, if drug cops had thrown John Belushi in prison, he might have lived. But John Belushi is an exception. Most drug users don’t die from it. Most don’t become addicted. How many of them are you willing to imprison against their will to stop a guy like John Belushi from killing himself? I’d have trouble justifying any answer other than zero.)

Jack seems to argue that Belushi owed us some sort of duty of entertainment, and that to ensure that people like him continue to entertain us, we need to be able to lock them in a cage for using drugs. This is kind of a creepy claim on some other person. I’d be willing to dismiss it as just my imagination, except that he also takes a similarly paternal interest in black people:

This overwhelmingly black, poor, educationally-challenged and struggling population needs competent, trustworthy leadership and an injection of values. It is a community, after all, that idolized the late Marion Barry, a mayor who smoked crack on the job, and never apologized for it. It’s not surprising that the adults in the District would tell the young African-Americans that it’s cool to spend their your money to get stupid, to avoid clear thought rather than practice it.

Whereas Jack would rather put the District of Columbia’s young African-Americans in prison, because there’s no way that a five-year stretch in a cage will teach them bad values, impair the quality of their education, or break up families, right?

This isn’t just paternalism, this is the perpetual false argument that we need to punish people “for their own good,” that we ought to punish people for doing things we consider unwise, that some people just can’t handle freedom. It’s no wonder that Jack has trouble understanding why some black people see similarities between the modern incarceration state and slavery. Southern slave owners would have said that Africans are too simple and child-like, that they needed the slave owners to take care of them and see to it that they were good Christians. Drug warriors say that we have to imprison black people so they won’t do drugs. Every oppressive system has an excuse for why some people have to suffer.

“Of all tyrannies, a tyranny sincerely exercised for the good
of its victim may be the most oppressive. It may be better to live
under robber barons than under omnipotent moral busybodies.
The robber baron’s cruelty may sometimes sleep, his cupidity may
at some point be satiated, but those who torment us for our own good
will torment us without end for they do so with the approval
of their own conscience.”

— C. S. Lewis, “God in the Dock” (1948)

For the record, I think C.S. Lewis is wrong about the robber barons. They’re worse, because they don’t have consciences to trouble them, and cannot be encouraged by reason to change their minds, because that would be to oppose their own interests.

But that doesn’t let the moral busybodies off the hook, because it turns out you don’t have to hate people to cause them a lot of harm. The well-meaning can do quite a lot of damage with the best of intentions.

It’s Probably More of a Dingy Gray…

When I read Spencer Ackerman’s story in the Guardian about a Chicago Police “black site” right here in the city — where CPD supposedly keeps people in secret to interrogate them without access to a lawyer — I was skeptical. Scott Greenfield is too:

How is it possible that this off-the-books facility existed for so long, and yet nobody, no lawyer, no judge, raised its existence, whether in a criminal proceeding following an illegal interrogation, or at arraignment when a beaten defendant appears with no cognizable explanation for the imprint of the Glock on his face?

What about a civil suit?  Where are the § 1983 actions for the deprivations of civil rights?  Even if the state courts were part of some conspiracy to keep this black site out of the courtroom, are the federal courts part of the conspiracy as well?  And what of the family of the “at least” one dead guy?  Didn’t they go to a lawyer to address this little detail, that their father or husband turned up dead?

Scott doesn’t like when people speculate in his comment section, so I’ll do it here.

Part of the answer to Scott’s question of why this hasn’t come out is that this is Chicago and that’s how we roll. Former Commander Jon Burge tortured people for years before it came out. Actually, it came out all the time, but just from criminal scumbags, not anyone that the good people of Chicago were willing to believe.

I’m sure this place really exists, and I’m sure people are occasionally interrogated there. I’m also pretty sure there have been some shenanigans about whether or not somebody’s client is actually there. However, I also think that calling it a “black site” is just hype for the Guardian.

Big city police departments have lots of buildings that aren’t technically police stations — armories, administrative centers, supply depots, specialized units, stuff like that. It’s not hard to imagine that if you’re a cop who’s grabbed somebody up and you want to talk to them without the distractions of a busy police station (or their lawyer) you might want to take them to one of these buildings. It’s police-controlled, but it’s not the first place someone will look.

Or suppose you’re a cop attached to one of those special units that operates out of that Chicago-Police-building-that-is-not-a-station, maybe a unit with some kind of intelligence function. You’re trying to develop an informant, so you pick the guy up and bring him to your office. Or you happen to stumble on a crime in progress and make an arrest.

In any case, meanwhile, somebody trying to help the guy you picked up — perhaps his mother — might call 1-800-LAW-REP4 and a lawyer like Eliza Solowiej (mentioned in the Guardian story) might try to visit him. She can’t find him at any of the stations, but being a somewhat infamous thorn in the side of the Chicago Police, she knows to try Homan Square.

Since it’s not a police station, it’s probably not set up to receive the public, including lawyers looking for their clients. And the cops there are even more surly than usual because they’re not used to people walking up and asking questions. It’s probably not normally used to hold people either, so the folks guarding the doors don’t really know how to deal with it. Easier just to tell the lawyer he’s not there and hope she goes away. Or maybe she gets a cop who knows the rules and he lets her in.

(Both things happen in the Guardian story. Besides, you don’t need a “black site” to make cops lie to defense lawyers.)

By the way, the Chicago Police say that Homan Square houses the Bureau of Organized Crime, the SWAT Unit (which would explain the military-ish vehicles), Evidence Technicians, the CPD ballistics lab, and a few units that have undercover officers. I’m pretty sure it’s also where you go when someone steals the radio out of your car and the police call you to say the found it. And from other information, I think it includes city-wide anti-prostitution and anti-gang functions. Most of these aren’t exactly street cops who arrest people all the time, so it’s not the first place people think of when they’re looking for someone who’s been arrested.

I imagine they all got a memo from headquarters about what to do if a lawyer drops in. Followed by a word-of-mouth warning that there are going to be reporters around, so for God’s sake don’t do anything stupid.

Update: My laptop battery was running out of juice when I wrote this (It went into hibernation in the middle of the page refresh after I clicked Publish!), so it was kind of a rush job. I wanted to clarify that when I say that the Homan Square building isn’t really a station, what I mean is that it’s not one of the 22 district stations that Chicagoans think of when we talk about “going to the police” to report a crime or a car accident or something like that. CPD still calls it a station.

Return to the Planet of Reasonable Doubt

Over at a public defender, Gideon has posted his second attempt to create a jury instruction for the meaning of “reasonable doubt,” based on feedback he got from his first attempt, which has a lot of interesting comments.

The discussion is far too technical for me to contribute to, for reasons that Scott Greenfield spells out when describing an attempt he was involved with:

The mandate was to come up with an instruction that was consistent with existing caselaw while being comprehensible on a 6th grade level and across varying ethnicities.

That’s way beyond me. I’m sure I have nothing helpful to contribute to the discussion. But I’ve never really let that stop me from blogging, so…

Take a quick look at Gideon’s proposed instruction. You don’t have to actually read it, but I want you to see what it looks like. Here it is:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: The evidence must fully and firmly convince you of the defendant’s guilt before you may return a verdict of guilty.The evidence must cause your state of mind to be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

It seems nice enough. It’s clearly written and full of evocative phrases. But when you step back from its context as a jury instruction, I think there’s a larger, more fundamental problem. There’s just something wrong with trying to explain such an important topic with so few words.

Excluding the instruction itself, Gideon’s post runs to 800 words, and he and his visitors added another 2000 words of comments. In an earlier post, he wrote another 900 words, which brought another 1500 words of comment. That post was in response to a 700 word post from Scott Greenfield that had another 700 more words in the comments, and it spawned a 2600-word behemoth post from Rick Horowitz, plus 600 words in the comments. Add it all up, and just these few posts amount to a discussion of reasonable doubt that runs to almost 10,000 words.

Yet if the judge uses Gideon’s proposed instruction, the jury will have to figure out what reasonable doubt means from only 272 words. That doesn’t seem…reasonable.

When it comes to explaining nuanced topics like reasonable doubt, there are well-known teaching techniques. For example, you approach the topic several times from different directions, you emphasize key points, and you hit on those points over and over so they sink in. You explore the context in which the subject arises, perhaps considering why reasonable doubt is an important feature of the justice system, so jurors understand why they’re supposed to apply the standard the way you want them to. And you also drop the discussion into the details, illustrating the rules you want to teach with examples — what counts as reasonable doubt, and what does not. You explore corner cases, and you show how the rules of reasonable doubt are derived from the larger goals of our system of justice.

You try to link the subject you’re teaching to things your students already know. You discuss how certitude and doubt already play roles in jurors’ lives, and you explain how reasonable doubt is related to those levels of doubt. You use analogies, diagrams, and stories.

Then you let them practice. You give them an example scenario, and let them figure out whether there’s reasonable doubt. Have them discuss it with each other and with you. You answer their questions, and ask instructive questions of your own. When you see them applying a principle incorrectly, you explain what they’re doing wrong, and you suggest ways to avoid that mistake in the future.

Finally, you test them. You confront them with a series of problems, and you find out which potential jurors demonstrate competence, which ones need more training, and which ones wash out of the jury pool.

In a nutshell, that’s the kind of training program it takes to get a group of people to become competent at a job. So why don’t we train jurors that way for their job?

In the industrial world, we sometimes prefer on-the-job training. It actually includes a lot of the same processes, but in the context of actually doing the job. Employees start out with simple tasks and work their way up, and competency testing takes the form of a supervisor’s evaluation. That doesn’t seem to be what we’re doing with jurors, however, because there’s no evaluation of juror performance, and they don’t work their way up — your first trial as a juror could be a capital murder or a racketeering case with mountains of complex evidence.

Another possibility is that training jurors is just too costly. That’s not quite the whole story, given the extensive training received by almost everyone else involved in the trial — lawyers, judges, court reporters, bailiffs — all of whom receive weeks, months, or years of training. Of course, the training for all of those people is reusable. Once trained, they can participate in many trials. We don’t do that with jurors. We don’t hold trials using fact finders drawn from a pool of trained professional jurors.

Every once in a while, someone proposes switching to professional jurors, but the general consensus seems to be that we prefer to use jurors drawn at random from the community. The argument is usually that professional jurors would be captured (or corrupted) by the system that employs them, and they would soon become insiders — just another part of the incarceration machine. Jurors plucked from the community take their duty of impartiality more seriously, and they represent the community better because they are a random sample. They remain part of the community from which they are drawn, as opposed to professional jurors, who self-select to join the criminal justice community.

I like this argument, but I don’t know if it’s true. In any case, we end up with jurors who are largely ignorant of the law and the workings of the criminal justice system, and who have to be instructed on reasonable doubt (and everything else they need to know) in the limited amount of time available for trial. Overall, it seems like a very sloppy process, and Gideon’s attempt to write a good jury instruction on reasonable doubt seems like a hopeless dream.

Or maybe that’s the wrong way to look at it. Maybe I should take the jury system more seriously. After all, juries have been used for centuries, and they exist in one form or another in most of the free countries of the world.  Maybe jury ignorance is a feature not a bug: Jurors are drawn at random from the community, and the limited instruction is intentional, presumably to encourage jurors to bring their community values into the process.

In that case, the true definition of reasonable doubt is not really up to lawyers or judges or legal scholars. We tell juries they must be convinced of a defendant’s guilt “beyond a reasonable doubt,” and they tell us the verdict. As a practical matter, the meaning of reasonable doubt is whatever the jurors say it is. And since this is the result of the evolved design of the jury system, perhaps this practical meaning of reasonable doubt is in fact the only true meaning of reasonable doubt. Reasonable doubt is whatever the jury does after you give them the reasonable doubt instruction.

I don’t know if you learned anything from reading this, but I feel better now. This way of thinking has a certain elegance, and it makes Gideon’s task seem less hopeless. He doesn’t have to teach a jury everything they need to know about reasonable doubt in 272 words. He just has to get them to use what they already know.

Reviewing the Charges Against the Bronx Defenders

Professor Jonathan Oberman from the Cardozo School of Law has a great opinion piece in the New York Law Journal about the two lawyers who were forced to resign as a result of the Bronx Defenders’ “Hands Up” kerfuffle.

These lawyers are smart, committed and hardworking, and have earned their clients’, their community’s, and this city’s trust as a consequence of their dedication and the quality of their work. The two lawyers who appear in the unspeaking cameos may have made an ill-considered decision to involve their office in a video that, in the current environment, placed its good works at risk. But they are decent, caring, thoughtful people—hardworking lawyers motivated by concerns for social and racial justice and committed to achieving a world where access to due process does not depend on the color of one’s skin or the color of one’s uniform.

Like me, Oberman points out that the lyrics are about people in the black community being angry enough to talk about killing cops, but they don’t actually advocate killing cops. “Hands Up” is literally (at least in part) about putting your hands up.

In a less charged moment, with a mayor unconcerned about regaining the trust of the city’s police rank and file, I suspect much less would have been made about the lawyers’ decision to appear in the video.

When I first heard about the controversy, one of the things that struck me hardest was the incredible overreaction — demands for the city to stop funding the Bronx Defenders — over a monumentally trivial matter. (And Scott Greenfield has some interesting points about the level of scapegoating involved.)

As near as I can tell, all reported accusations against the Bronx Defenders trace back to the New York City Department of Investigation’s press release and findings. It appears to be the result of reviewing public information about the Bronx Defenders, reviewing emails sent within the organization and between the organization and members of the city government, and interviews with key staff members including Kumar Rao and Ryan Napoli, the two lawyers in the video, and Executive Director Robin Steinberg.

The two lawyers who participated in the video admitted to being aware of the lyrics to “Hands Up” before participating in the video. They told the DOI that they believed they would be given the opportunity to edit anything offensive from the video before it was released, but they didn’t have any legal agreement to enforce that requirement, and there’s apparently no evidence of them wanting to remove the cop-killing lyrics.

Here is a brief description of what was known about the lyrics and video, according to the DOI report*:

Rao and Napoli stated that on the date the video was filmed at The Bronx Defenders office, they were shown the portions of the video filmed at the office that day. Rao said that they were also shown some other snippets of previously recorded scenes, including one where individuals portraying NYPD police officers were taking someone into custody. Rao stated that they were not shown images of the singers pointing guns at the head of a police officer, which ultimately appeared in the video released to the public.

[…]

Steinberg stated that it was her understanding that no one at The Bronx Defenders saw the complete video before its release, including the images of guns pointed at the head of an individual portraying a police officer. Rao and Napoli said that they did not see the entire video until after its release.

The Bronx Defenders are certainly doing a job where things can go wrong in a big way. They take on some very heavy responsibilities for indigent defendants, and bad things happen if they screw up. Mistakes could result in clients losing their families or spending undeserved decades in prison. Poor leadership could allow a culture of sloppiness to establish itself, and their criminal defense practice could decay into a meet-and-plea mill. The organization’s officers could mismanage funds, dole out favors to friends, or outright steal money.

Those things would all be serious problems demanding a prompt and decisive response. But a couple of lawyers opening the office on Sunday so they can be in a gangster rap video for a local artist…not so much.

One thing everybody agrees on, supported by all available evidence, is that Robin Steinberg had not seen the lyrics. It doesn’t seem unreasonable to me that the director of a 250-member organization might delegate a side project like this this to her subordinates. The DOI findings, however, fault Steinberg for a lack of due diligence.

The DOI findings also fault Steinberg for failing to take disciplinary action against the lawyers involved. I think this is overreaching by the investigators. The Bronx Defenders are a private organization, and unless internal disciplinary procedures are in the scope of the contract with the city, it’s none of the city’s business how Steinberg disciplines her people. That’s between her and the board of directors. Unlike the bureaucratic hacks who run the city government, not every leader regards assigning blame and meting out punishment as the most productive way to address failures. Accountability is important when it comes to deliberate wrongdoing, but mistakes are often better handled through techniques such as cause analysis, process modification, and training.

Several commentators unsympathetic to the Bronx Defenders have drawn attention to the DOI’s finding that Director Steinberg made misleading statements to city officials during the investigation. To my mind this is the most damning accusation: Everything else can fairly be described as a mistake, but there’s no justification for lying.

The thing is, when you actually read the DOI findings, there’s not much to it. All of Steinberg’s supposedly misleading statements were made after the video came out, when Steinberg was responding to questions from several officials. Here are excerpts of what the DOI findings have to say about them:

On December 5, 2014, The Bronx Defenders released a public statement regarding its participation in the video, which did not address the song’s lyrics. […] However, the statement did not address the song’s lyrics, which, as discussed above, were known to Rao and Napoli when they agreed on behalf of the organization to participate in the video.”

I don’t quite see how failing to address the lyrics is misleading. The lyrics were public knowledge, easily discoverable by anyone interested.

None of these email communications fully described the circumstances of The Bronx Defenders’ involvement in the video. They did not mention that Rao and Napoli were aware of the song’s lyrics — months before the release of the video — when they commenced initial discussion with the producer about the video.

I’m not sure what to make of the fact that the emails didn’t mention that Rao and Napoli were aware of the lyrics. It’s not a lie, but it doesn’t sound like the whole truth either. This seems more legit than the previous accusation.

Further, none of the emails mentioned that Steinberg approved the organization’s involvement in the video without reviewing the lyrics or inquiring further about the songwriters. Instead the emails provided a selective and misleading recitation of the circumstances surrounding The Bronx Defenders’ involvement in the video.

It would be one thing if Steinberg had lied about reviewing the lyrics, but faulting Steinberg for failing to list things she didn’t do seems like a bit of a stretch. And frankly, if she had come out and said she never saw the lyrics, that would seem like she was covering her ass and trying to blame subordinates.

For example, in her email to Ms. Glazer on December 10, 2014, though she was aware months before the release of the video that Rao was coordinating with the producer regarding The Bronx Defenders’ involvement in the video, Steinberg wrote, “Late last week, I became aware of a hip hop video that was making its way into the world called ‘Hands Up.'”

This seems like reasonably accurate language. The video had been in production for a while, but it didn’t start coming out — “making its way into the world” — until a couple of months ago. It’s just a turn of phrase, not an attempt to hide her earlier knowledge of the video. In fact, she clearly admits to earlier knowledge of the video in that very same email message, as described by the very next sentence in the DOI findings:

Later in the email, Steinberg wrote that “[t]he version of the video that is on the internet — and that two of our lawyers appear in — is not the version we saw when they agreed to appear in the video.”

So in this case it was the DOI findings that were misleading, accusing Steinberg of trying to hide something that she in fact admitted to.

In any case, the DOI has problems with her admission as well:

This statement suggests that The Bronx Defenders saw a version different from the one released to the public when, in fact, Steinberg acknowledged during her interview that they had only seen limited footage and did not see a full version of the video before its release.

So the essence of the DOI accusation is that she said she saw a version of the video, when in fact what she really saw was some fragments of the video. “Version” vs. “fragments.” I see the difference, but it’s not much of a difference. And either way, the salient point remains that the offending scenes from the final video were not present in the video material the Bronx Defenders reviewed.

Steinberg also did not mention that Rao and Napoli had her approval to participate in the video. Moreover, as with the public statement, Steinberg did not address the lyrics or the attorneys’ knowledge of the lyrics. As such, Steinberg’s statements, while perhaps not legally perjurious, were clearly misleading.”

This is just more of the same, and as far as I can tell.

I believe I have now quoted everything in the DOI report that describes Steinberg’s supposedly misleading statements. Perhaps Steinberg responded to the inquiries from city officials with the carefully correct-but-one-sided statements of a lawyer rather than with the full candor they deserved. But with the possible exception of the failure to mention that Rao and Napoli had her approval, the accusations of misleading statements are so thin as to be nonexistent.

I’ll wind this up with one more quote from Oberman’s piece:

But no matter what meaning one extracts from the video, it is difficult to see how one can leap to characterizing the Bronx Defenders lawyers as “bad apples” and demand a plan of action at the cost of an implicit threat to de-fund the office. Its 250 lawyers, social workers, advocates, investigators and other staff serve clients charged with crimes and assist community members with housing, family, child custody, immigration, school-related and re-entry issues. The office has trained scores of public defender offices around the country to adapt its creative, cost-efficient model. At a time when so many communities are struggling to give meaning to the 50-year-old promise of Gideon v. Wainright, Steinberg has built an office that delivers that promise on a daily basis.

Reasonable people should recognize overreaction when it stares them in the face. And no responsible party should have sought to score political points or regain political capital by threatening the health of Bronx’s underserved population or the dedicated Bronx Defenders staff and lawyers who serve them.

Calls for some ameliorative, managerial measures for the Bronx Defenders might have been proportionate to what in hindsight was an ill-advised decision to participate, no matter how tangentially, in the video. But too many were willing to threaten the Bronx Defenders’ ability to continue to serve a borough and its people who rarely get their fair share of New York City’s resources.

Arguably, as I’ve said before, the biggest screw up on the part of the Bronx Defenders was letting something like this jeopardize their mission. NYPD union president Pat Lynch may be an asshole, and Mayor Bill de Blasio may be an unprincipled politician, but neither of those things were a big secret. When you’ve taken on the task of defending 30,000 indigent people every year, you should try very hard not to make it easier for the assholes and the unprincipled to attack your funding. I suspect they’ve learned that lesson now.

*Note: The DOI press release is typeset in the PDF document, but findings themselves are an image of a typeset document. All quotations from the findings are thus hand-transcribed by me and likely include my mistakes.

Why Are Grand Juries So Secret?

I’ve been trying to understand why grand jury secrecy works the way it does, and there are parts of it that just don’t make sense to me. At a fundamental level, the idea of the government telling people there’s stuff they can never, ever talk about just doesn’t seem right. Our right to free speech isn’t absolute, but there usually has to be a pretty good reason for an exception.

As an aside, just why doesn’t the First Amendment apply? While discussing another topic, Mark Bennett explains that there are nine accepted exceptions to the First Amendment’s speech protections:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. [Distribution of] obscenity;
  3. Defamation;
  4. Speech integral to [non-speech] criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent.

I don’t see how the prohibition against revealing grand jury proceedings fits under any of those. I assume this is because the speech restriction inherent in grand jury secrecy comes about through a completely different legal mechanism, presumably the same one (or a similar one) that enables trial jury secrecy, makes it a crime to talk to a juror about a case they’re hearing, and allows courts to issue gag orders. I’m guessing this is all part the pre-existing common law that underlies much of the U.S. constitution.

Anyway, I’m more interested in the policy argument than the legal reasons things are the way the are. To that end, Jack Marshall’s argument against a Ferguson grand juror going public organizes some of the arguments rather nicely.

Much of the justification for grand jury secrecy is OPSEC:

Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with and attempting to corrupt the investigation. […] It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.

These are great policy reasons for maintaining grand jury secrecy while the grand jury investigation is in progress, but the harms they protect against are no longer possible once the investigation is over. Because physics. And yet grand jury secrecy is forever.

It protects witnesses who might be reluctant to testify if they believed their comments would be made public.

Grand jury secrecy already has some holes. Testimony can already become public in a variety of ways. If the case goes to trial, the witnesses would be expected to repeat their testimony in open court, and their grand jury testimony can come into play. It’s my understanding that in some states grand jury testimony becomes a matter of public record if the defendant is indicted.

If even one grand jury is able to have the ban on secrecy lifted, every grand jury will labor under the fear of those involved that jurors will speak to the media and reveal harmful details.

Why exactly would revealing details be a bad thing? We generally consider accountability to be a good policy that helps ensure our institutions are doing what we want them to. In fact, almost every other player in the court system has to operate in the sunshine: Cops, prosecutors, witnesses, judges, petit jurors, and defense lawyers all have to do their part with the knowledge that once it’s all over, anyone involved can reveal their words and conduct to the public. I’m not sure why accountability is good for everyone else but bad for grand juries.

Besides, as I said, grand juries already labor under the knowledge that what they do could be revealed. And many states manage to indict people using preliminary hearings. If these non-secret hearings work okay, then I don’t seen why non-secret grand juries couldn’t also work.

It also protects innocent individuals whose names may be implicated in a grand jury investigation but who will never be indicted.

Protecting the innocent. Now that is a justification I can get behind.

Much of the current discussion about loosening grand jury secrecy — or reforming the grand jury system in other ways — is in reaction to suspicions about the grand jury that did not indict Ferguson police officer Darren Wilson for killing Mike Brown, or the grand jury that no-billed NYPD officer Daniel Pantaleo for killing Eric Garner. But as Elie Mystal points out, grand jury investigations of cops are the exception, not the rule:

We gain nothing, but stand to lose a lot by releasing grand jury testimony. In the Ferguson and Garner situations, we’re dealing with cops as potential defendants. And that’s why the system favored them and the prosecutors did everything they could to help them. In most situations grand juries are dealing with regular people who are about to be totally railroaded by the system. Innocent or guilty, most grand jury testimony involves a prosecutor, unhinged from any kind of representation on behalf of the defense, painting the worst possible picture of the defendant in order to force an indictment. Grand juries aren’t about truth, they are about giving prosecutors leverage to force a defendant into a settlement on crimes they may or may not have committed.

You want to set a precedent where you make that kind of crap public? Are you insane? You want to give prosecutors more power to sully the name of potentially innocent people as they preen for the cameras and try to do things like run for Congress?

Fair enough, and I’m inclined to agree. Except…

Why are the Ferguson grand jurors still muzzled? All of the witnesses have been heard, the defendant has not fled, and all of the grand jury testimony has been made public. At this point, I think all that is being protected by the policy of grand jury secrecy is the identities of the witnesses and the deliberations of the grand jurors. I’m not convinced that the government’s interest in protecting either of those things is strong enough to overcome our default preference for free speech and transparency. Why should we only hear the prosecutor’s version of what happened in the grand jury hearings?

Arguably, we shouldn’t go changing the rules retroactively, since witnesses and grand jurors have presumably relied on the secrecy guarantees, but that doesn’t mean it’s the right policy, and that’s not a reason to keep doing things the same way in the future. Once the grand jury testimony is public, I can’t see much justification for keeping the grand jurors from talking about it.

(Hat tip: Scott Greenfield.)

The Bronx Defenders Get Some “Corrective Action”

A resolution of sorts has arrived at the Bronx Defenders, with lawyers Kumar Rao and Ryan Napoli both resigning from the firm as a consequence of the controversy over their involvement in the “Hands Up” rap video. News reports say that Executive Director Robin Steinberg has been suspended for 60 days without pay, and that Steinberg and her organization will be under increased scrutiny in the future.

Offhand, this sounded about right. Not in the sense of being just or fair — the complaints about Steinberg in particular seem overblown — but in the sense that it sounds like enough to placate the wolves and allow Mayor Bill de Blasio to claim he did something about the problem.

News reports also mentioned some other changes, and the Mayor’s Office of Criminal Justice (MOCJ) has now sent out a letter explaining the corrective actions, which includes additional review and correction steps. I don’t know enough about New York bureaucracy and politics to understand what it really means, but Scott Greenfield does, and his criticism is withering.

Regarding the hiring of Jason Lilien, former Bureau Chief of the New York State Attorney General’s Charities Bureau,  to advise the Bronx Defenders board on how to address the problems identified by the DOI’s findings, Scott remarks,

Perfect, because the funding for Bronx Defenders will be far better spent on paying for this nonsense than representing the indigent.  After all, everybody knows how indigent defense is rolling in so much dough they have oodles of money to squander on paying non-productive former state functionaries.

And then, they now have a former Attorney General bureau chief telling an indigent defense organization how to function.  Perhaps it didn’t dawn on the mayor’s office, but the attorney general’s office is on the other side of the criminal justice function, the side that wants to see every client of Bronx Defenders convicted.

The MOCJ also wants the city’s Corporate Counsel to create a training program to help the Bronx Defenders “ensure that its attorneys are zealously representing the interests of their clients and observing their responsibilities as officers of the court,” to which Scott responds,

So New York City’s Corporation Counsel, whose job it is to defend police for wrongful conduct, will now have their finger in the training of public defenders to “ensure” they are zealously representing their clients?

Let me just remind everyone that the “Hands Up” lyrics are about the community anger over the fact that police seem to face no consequences for killing young black men. Now the organization that helps ensure they face no consequences has been given influence over the Bronx Defenders.

The one thing that has never been in doubt was that Bronx Defenders did its job well.  There is, on the other hand, some serious doubt about the efficacy of Corp Counsel’s office, it being the place where third stringers get jobs after they’ve been turned away by the two US Attorney’s offices, five city district attorney’s offices, and the Special Narcotics prosecutor.

The notion that anyone at Corp Counsel should have any part of their anatomy, whether a finger or worse, involved in what Bronx Defenders do is ridiculous.  If anything, Robin Steinberg ought to teach Corp Counsel lawyers how to do their job, though she wouldn’t because they are the adversaries in the system.

Scott’s not kidding. The Bronx Defenders have a training program in criminal defense, and they provide training in indigent defense to other organizations.

As Scott summarizes the changes, it’s pretty typical government theater with a dose of cronyism:

All of this over a momentary appearance in a music video?  Of course not. The video was trivial, though the punishment, that skims money out of indigent defense so it can be used in the Full Employment For Former Government Functionaries Act, will directly harm the poor in the Bronx.

This is about the mayor appeasing the cops, at the expense of Bronx Defenders, and more importantly, the defendants in the Bronx courts who have long suffered mightily at the hands of cops who target their neighborhoods, their youth of color.

This all seems like an awful lot of trouble over a few lawyers who opened the office on a Sunday so they could be in a music video. Hopefully, the Bronx Defenders won’t have to waste too much more time and budget dealing with it.

A Very Good Point About the “Hands Up” Controversy From Radley Balko

In his article about the Bronx Defenders’ involvement with the “Hands Up” rap video, Radley Balko makes explicit something I had in the back of my mind when I wrote my post, but that I couldn’t quite articulate:

In the Bronx Defenders, we have group that knows how to work the system. It has irreplaceable institutional knowledge of the city’s bureaucracy, its courts and its social welfare system. Its lawyers put that knowledge to work to better the lives of poor people. For the sake of argument, let’s stipulate that the video above really does call for violence against cops. And let’s stipulate that the attorneys who appeared in it knew as much ahead of time. Terminating the city’s contract with the Bronx Defenders would placate angry law enforcement groups and their supporters. But who would it punish? The Bronx Defenders staff are by all accounts talented attorneys. They’ll find jobs elsewhere. The people who will be punished are their indigent clients — both present day and in the future. Because two attorneys appeared in a rap video, the poor in the Bronx will be robbed of one of their most powerful and effective advocates. That’s some pretty severe misplaced accountability.

In a nutshell, that’s why people should be angry about what’s happening to the Bronx Defenders.

A Bit Of Excitement Around Here

On a personal bloggy note, this past week I’ve started seeing signs that Windypundit is once again beginning to draw a bit of attention. The tweet for my post about the attempt to shut down the Bronx Defenders because of a rap video was retweeted by a relatively large number of people, starting with Gideon and Scott, and that post has received about 25 times the traffic one of my posts usually gets. I’ve also received a couple of private “Thank you” emails from Bronx Defenders staff, and David Feige was nice enough to drop by in the comments.

And now I see that Radley Balko at the Washington Post has published an article on the Bronx Defenders’ troubles, and it includes a link to my post and an extended quote from it. That’s pretty cool — getting that kind of attention from a WaPo columnist. Strangely, however, the part of my post that Radley decided to use was my attempt to explore what the lyrics of Uncle Murda’s “Hands Up” really mean. Because, when you’re looking for insights into rap music, aren’t I the first person you think of?

Just call me MC Big Windz. And join me next week when I disclose yet another version of Big Sean’s Blessings, speculate whether Meek Mill’s second studio album can possibly repeat the rambunctious mayhem of his debut, and discuss rumors of an emerging 100th problem for Jay-Z.

Je Suis Bronx Defenders

The Bronx Defenders, a non-profit law firm in New York, are taking some heat because two of their lawyers, Kumar Rao and Ryan Napoli, acted in a few scenes of a rap video which were filmed in the firm’s offices. The song, “Hands Up,” is not my kind of music, but if you want to watch it, here it is:

Just looking at the freeze frame should give you some idea what the controversy is all about. The lyrics include lines like “For Mike Brown and Sean Bell, a cop got to get killed” and “Time to start killing these coppers.”

Needless to say, this has not gone over well with the NYPD, prosecutors, and various other participants in the criminal justice system.

On Thursday, New York City investigators sharply criticized the two public defenders for participating, concluding that they knew beforehand that the lyrics endorsed deadly retribution for the death of Mr. Garner, in July after a confrontation with police officers.

The city’s Department of Investigation also determined that the founder and executive director of the Bronx Defenders, Robin Steinberg, approved the organization’s involvement without reviewing the lyrics and later misled city officials about her role. The city has demanded that the Bronx Defenders, known for its aggressive defense of low-income and minority clients and receives about $20 million a year in city funds, take disciplinary action against the two lawyers by Feb. 4.

I can understand why people would get upset about lyrics that endorse killing cops, and everybody has a right to tell Uncle Murda, Jay Watts, and Maino to take their stupid song and shove it up their ass.

That said, this pisses me off for so many reasons.

For starters, most songs are fiction. I’m not just talking about movie musicals and theatrical songs. Lots of popular music — rap and country more than most, I think —  is storytelling, with the artists taking on a persona as part of the performance. They play a character in a story.

The story told by the lyrics could be true, but it’s more likely to be an exaggeration, if not complete fiction. Eminem didn’t really kill his ex-wife. Bruce Springsteen has a blue collar background, but he’s spent most of his life as a musician, not a factory worker. Alanis Morissette probably gets pissed off now and then, but she isn’t really as angry as she was on Jagged Little Pill. Bob Marley did not shoot the Sheriff, Johnny Cash never shot a man in Reno, and NASA is not planning a rescue mission for Major Tom. (It is, however, the dawning of the age of Aquarius.)

Actually, let me step aside from my main point for a few paragraphs to point out something about the lyrics of “Hands Up” that seems to be missed in all the ruckus: Despite what the quoted phrases seem to mean when taken out of context, the song as a whole doesn’t actually advocate shooting police officers. I can’t believe that I’m explaining rap to anybody, but if you’re going to raise hell over a song, you really ought to pay attention to the lyrics. Uncle Murda starts “Hands up” like this:

I spit that shit the streets got to feel
For Mike Brown and Sean Bell, a cop got to get killed

In other words, he’s talking what the urban black community is feeling. People are angry about young black men like Mike Brown and Sean Bell getting killed by the police, and some of them are angry enough to kill cops. A little later, Maino raps about someone more specific:

My lil’ homie told me he ready to riot
Ferguson was on his mind, he ready to fire

I’m too old and white to have any idea what the relationship is between Maino and his “lil’ homie,” but it’s clear that he’s describing someone else’s violent thoughts, which is not the same as advocating violence. (In this, “hands up” is unlike certain other Uncle Murder songs.)

I’m not saying “Hands Up” is preaching a message of non-violence. But neither is it telling people to kill cops. It’s a five minute song about how police killing young black men is making them angry enough to want to respond violently. The video repeats the scene of two young black men pointing their guns at a young white NYPD officer’s head several times, but they never pull the trigger. It’s not advocating killing. It’s saying that people are angry enough to kill.

For that matter, the majority of the song is not about anger or retaliation but about the reason for the anger: Cops killing young black men without consequences. A few more lyrics:

Cause I’m black, police think they got the right to shoot me
No jail for them, their punishment is desk duty

These cocksuckers supposed to protect us
Killing unarmed black men, making mothers holler
And this who the government paying with our tax dollars
All these unjustified shootings
Then they call us animals when we start looting
Those kids ain’t had no gun and the police knew it

Black boys running from white cops
Who are they to determine just if our life stops
Please your honor, tell me if I’m a goner
“I can’t breath, they’re choking me”, words from Eric Garner
You know this shit just ain’t right
My son ask me this morning, “Daddy, we safe, right?” (No)
How the fuck I will tell him we ain’t got the same rights
They put our babies in coffins, this shit just ain’t life

That’s also what much of the video is about, and most of the violence in the video is by police, captured from real life on cell phones. The two public defense lawyers who appear in it are comforting a woman who appears to be grieving.

The New York Times story talks about the Bronx Defenders getting that $20 million a year as if it was some kind of benefit that the city was doling out. It’s important to realize that the Bronx Defenders are the Bronx County public defenders. [Update: They’re actually one of two organizations that provide public defense.] They have the contract to handle indigent criminal defense throughout the borough. They get that money because Gideon v. Wainwright (the Supreme Court decision which established the public defender system) requires the City of New York to make sure that someone does the job that Bronx Defenders are doing. They’re as much a part of the justice system as the police or the District Attorney’s office.

It’s not like the Bronx Defenders spent public money to make a music video about killing cops. Most of their money does come from a pair of government contracts, but the cost of making the video wasn’t actually billed to those contracts. This was just a side project by a few employees who got the boss to let some local rappers make a video on the premises.

The Bronx Defenders do a lot of outreach and get involved in the community, so it’s not hard to imagine that if some employee came to them and said a friend of hers is a video producer who would like to shoot a video in the building for a few hours on a weekend — and would some of the lawyers like to be in it? — they might agree without giving it a whole lot of thought.

Mr. de Blasio, whom many police officers accused of tolerating anti-police rhetoric by some protesters, was pointed in his criticism of the Bronx Defenders, saying that unless the group promptly addresses the concerns, “the city will take all legal and contractual actions available to it.”

The city could cancel its contract with the Bronx Defenders, which serves about 35,000 clients a year.

Last year the city of New York procured more than $17 billion from thousands of vendors, and I’ll bet a lot of them have employees who’ve said things that the Mayor and the NYPD don’t agree with. So why is the city singling out the Bronx Defenders?

I don’t think it’s because of some low-budget video by some moderately successful rappers. This is really about the job the Bronx Defenders do every day. They’re well known for providing defendants with zealous representation and they offer a broad base of services to people who are accused, likely to be accused, or convicted of all kinds of crimes. When they do their job well, they undoubtedly piss people off. And now somebody’s decided to take this opportunity to give them a little payback. The Mayor needs to get the police back on his side somehow, after all.

(Here in Chicago, the Law Office of the Public Defender doesn’t have the freedom to represent people so broadly, so non-profit organizations like First Defense Legal Aid try to step in. When I wrote my post about the 50th anniversary of Gideon about FDLA, I asked the Bronx Defenders Executive Director, Robin Steinberg, for a quote about the benefits of pre-arrest representation, and despite the diminutive stature of Windypundit in the world of legal journalism, she was nice enough to take the time to give me something.)

To be sure, getting involved with the video was a fuck-up. When you’re responsible for providing indigent defense for 35,000 people, you better not do anything that would jeopardize your funding. Somebody — either the lawyers involved or Robin Steinberg — should have done a better job of making sure that the video didn’t have anything in it that they wouldn’t want to be associated with.

At the same time, however, the City’s response is more than a little disturbing. Except where the speech is an intrinsic part of what is being contracted, the government has no business telling people or organizations what they can or cannot say.

I mean, what’s the theory here? That no person or organization that receives money from the government should ever say anything upsetting or controversial? Is that really the standard? Where else would that apply? A bus driver who complains about stop-and-frisk at a community meeting? A construction contractor who gives an anti-gay sermon to his independent church group? Or how about the city’s colleges and universities? Could the city stop a CUNY theater workshop from performing a puppet show that portrayed cop-killing in a positive light? Would anybody even care?

Naturally, the investigators are not admitting that this is about free speech. They have a rationalization:

“If you’re an organization primarily funded by the city, you can’t use your premises and you can’t sponsor videos that call for killing police officers,” said Mark Peters, commissioner of the Investigation Department. He added, “When people in your organization do something that so damages your reputation, it also damages your ability to efficiently advocate in front of judges and in front of prosecutors.”

What a crock. This is a half-assed attempt to rationalize punishing them for their speech by latching onto the only possible justification. And technically, he’s got a point: The Bronx Defenders involvement in the video is Not Going To Help Their Clients, and on that basis it was certainly a mistake.

But let’s be realistic about it. Does Mark Peters know what criminal defense lawyers do for a living? That they defend rapists and murderers? And he’s saying a music video might damage their reputation? I’m just guessing, but I’m pretty sure that the Bronx Defenders have represented more than one actual cop killer. You don’t think that pisses people off? Like anybody who does criminal defense, they’re used to working around much larger conflicts than some stupid video.

And what does Peters mean when he frets about the their “ability to efficiently advocate in front of judges and in front of prosecutors”? They’re not the ones who are so upset about the video. Their advocacy isn’t going to be affected at all. What Peters is really saying is that judges and prosecutors might be so unprofessional as to let their feelings about the video influence their decisions in matters of justice, which could harm Bronx Defenders’ clients. As I’ve said, that’s a fair point, and they should have been more careful, but the Bronx Defenders are not the only problem here.

The report says the Bronx Defenders told investigators that they were prepared to issue all three employees 30-day suspensions without pay and to demote Mr. Rao and Mr. Napoli.

But in a statement, the Bronx district attorney, Robert T. Johnson, deemed those steps “insufficient.”

The Patrolmen’s Benevolent Association went further, demanding that the Bronx Defenders be shut down.

The district attorney and the Patrolmen’s Benevolent Association are just about the last people you’d want to influence policy for indigent defense. I’m sure they’d both be happy if the Bronx Defenders were replaced by a more subservient organization.

Ultimately, the Bronx Defenders have to do what is best for their clients, which may mean giving in to extortionate demands. But it makes me angry that they are under pressure over something as stupid as this. The Bronx Defenders are doing important work in their community, and I support them. Literally.

(Hat tip: Scott Greenfield)

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