Author Archives: objkshn

Abandoned DNA

Abandoned DNA

COLLECTING AND ANALYZING LITTER

It’s all around us.  DNA deposits.  Sweat we’ve dripped.  Saliva on envelopes.  Blood shed from minor scrapes and bruises.  But not all of these DNA deposits were innocently lost or responsibly discarded.  Many people deliberately elect to abandon their DNA where other people will then have to dispose of it for them, or suffer at their peril.  To what do I refer?

CHEWED GUM and CIGARETTE BUTTS

Rude and inconsiderate persons elect to leave their chewed gum holding the secrets of their DNA inviolate in such inconvenient places as the ground, public seats and under desks and tables for an added surprise.  There’s no reason that people cannot swallow gum. It can be swallowed and passes without incident through the body in the time it takes other food to be digested; not as the old wives would have you believe, in seven years.  (Smith, 2008.)  Thus, gum is something you should swallow, or at least dispose of properly.always swallow  There are those, instead, who elect to intentionally abandon these sticky DNA samples where other people are likely to step in them or grab them.   This constitutes several crimes: littering, vandalism, and destruction of public property.  Who are these anonymous offenders?  Under this proposal, their days of vexatious littering could be numbered.

Presently, however, this is a crime seemingly without recourse.  The public nuisance that it is, gum manufacturers should be required to post warning labels on their product advising customers that the product is safe to be swallowed and should be swallowed.  The warning should also encourage their customers to dispose of the gum properly, for the failure to do so could result in criminal consequences.

So, too, with rude cigarette smokers.  Children, building sand castles at the beach, sift through abandoned cigarette butts.  Motorists who smoke but apparently do not want the dirty cigarette butt to remain in their car instead foist it upon the rest of society by ejecting the butt out their car window, often still lit, without much concern if any for its extinguishing or proper disposal.  This disgusting act occurs in all regions and climates, but is particularly dangerous in fire danger zones.  The abandonment of chewing gum is an act of littering, vandalism and public nuisance in most places.  In fire danger zones, a carelessly tossed cigarette butt could be charged as reckless endangerment or arson, depending on the circumstances.

Instruments of death that they are, cigarettes are already pre-loaded with warnings.  These companies should be required to add one more to the repertoire explaining to its customers, that the failure to dispose of the cigarette butt properly could also result in criminal consequences.

cigarette warning label

GENETIC MARKERS

Perhaps this genetic litter is discarded so casually as the individual believes themselves anonymous and impervious to detection. A safe assumption in the past, but the anonymity of yesteryear, however, has given rise to the unlocking of the secrets of life and the universe itself, by a key shaped like a double helix found within each human. DNA_Double_Helix This key, unique to most persons, is easily retrievable in many items that are casually abandoned every day.  If identified and analyzed, the genetic markers could provide an approximation of the offender:  the hair, skin and eye color, and even the physical structure of the face.  Instead of anonymous, those who leave their chewed gum and cigarette butts behind, now do so with their genetic calling card attached for anyone to find and identify.

An artist seeking to bring attention to this issue collected the abandoned DNA found in cigarette butts, chewed gum and other debris and analyzed it. MendedVeil-NYTrash In sculptures described as both “creepy” and “cool,” artist Heather Dewey-Hagborg replicated the markers found in the abandoned DNA to approximate the facial appearance of its owner. After a quick Internet search, the artist deduced there were no laws governing abandoned DNA material in public spaces.  According to Dewey-Hagborg, because the markers do not provide predictions sufficient in reliability to be used in forensic science, the sculptures she created are unlikely to closely resemble the owners of the DNA.  (Aldhous, 2013.)

A cigarette found in Brooklyn, NY carried the genetic material of a male with Eastern European descent and brown eyes.

A cigarette found in Brooklyn, NY carried the genetic material of a male with Eastern European descent and brown eyes.

Still, her guesses put a literal face on an otherwise anonymous act.

DNA DATABASE

As the artist had correctly concluded for herself, so, too, can states legally collect the DNA samples abandoned in chewed gum and cigarette butts and enter this DNA into a database for later cross-comparison and possible analysis.   The Supreme Court, in 2013, made it much easier for the government to do so.  In the case before it, a criminal whose DNA was extracted when he was arrested and and then stored in the DNA database challenged this action in court.  The issue was ultimately heard by the Supreme Court which ruled in favor of the government in a 5-4 split decision.  Scalia, in a dissent joined by Ginsberg, Sotomayor and Kagan informed Americans, ““Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”  The rationale for the majority’s decision  is that the taking of the sample is minor intrusion and that it furthers a legitimate government interest in establishing the identity of the accused. Maryland v. King (June 3, 2013) No. 12-207.

But unlike the criminals whose DNA is extracted from them, the DNA in discarded cigarette butts and chewed gum has previously been abandoned.  It’s owners, tossing the sample out of a moving car window, flicking it into the sands of a beach where children play or mischievously planting it on a chair to ruin someone’s day or pants, will not be later able to say that they reserved a privacy interest in the abandoned property.  They threw away their privacy interest in the DNA sample when they abandoned the property as they did, and in so doing, left many clues behind.

Close up of Bubble gum stuck to trainers. A pedestrian walking along a street gets discarded  gum stuck to his trainersThe Fourth Amendment law on abandoned property is rather settled.  Trash placed in a bag and left at the curb for pick-up by the trash collector is deemed to be abandoned property.  Because a person relinquishes any expectation of privacy in the property when it is abandoned, the Fourth Amendment is not violated should the government seize it.  California v. Greenwood (1988) 486 U.S. 35. Thus, cigarette butts and chewed gum lawfully discarded in a proper trash receptacle would also be considered abandoned and proper to collect and store.  Yet there is no need to rummage through trash bags when there is an ample collection of abandoned DNA left in the most inconvenient and thoughtless of places.

Currently, there are limitations that shows such as CSI fail to depict when comparing suspect’s DNA against the DNA database.  It’s not quite as easy as the TV audience is led to believe.  (See, in general, The Defamation of the Criminal Justice System for a discussion of media inaccuracies in depicting the criminal justice system.)  The DNA databases are physically located and geographically confined.  There is not one central database, but a network of inter-connecting databases.  Searches must be done on multiple databases each with its concomitant cost.  And then, the search will only show a match if the person previously committed a crime before.  Since criminals represent a small population and those whose DNA has been collected and stored are an even smaller sub-set of this population, the only likely match will occur if the suspect has previously been arrested.  The few number of samples and the unlikelihood of a match renders the cost involved prohibitive for most agencies and for most offenses.

These factors led to a backlog of untested DNA in rape kits.  This problem became so unwieldly for local agencies to overcome, the federal government had to assist and did so in the creation of the DNA Backlog Reduction Program. But this, too, costs money.

To build up the database, many proposals for voluntary or administrative submission of DNA have been made but rejected.  Most interesting, police officers in departments across the country have been objecting to policies collecting the DNA of officers working at crime scenes to identify unknown genetic material found at the crime scene.  The police unions argued that there are no restrictions limiting the use and storage of the samples for the purpose intended and cited other privacy and misuse problems.  This debate continues on with police officers prevailing in some jurisdictions and the agency in others.   (Collins, 2011.)

From an efficacy viewpoint, how can we increase the volume of DNA samples for the greatest crime-fighting benefit?   The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.”  (Bazelon, 2013.)   Chewed gum and cigarette butts discarded inappropriately are, in and of themselves, crime scene evidence.  However, this evidence could also help pinpoint locations of suspects and narrow the focus of a criminal identification.  This evidence could give a clue where a particular criminal was located in a particular city and that information could help generate a timeline or locate other witnesses.  And, the procedure could not only be helpful in solving crimes, but also helpful in reducing the costs involved in collecting, analyzing and storing DNA.

ABANDONED DNA COLLECTION PROGRAM

This proposal will also add jobs to the workforce and create a new position; that of Abandoned DNA Collector.  This person will collect DNA in the form of chewed gum or cigarette butts, preserving such evidence as is proper, and labeling the collection with its location and the date and time of its collection.  The evidence collected is forwarded to the crime lab for extraction of DNA.  The DNA is then stored in the database for later comparison.

If and when a match is made, that person will be charged either with vandalism, destruction of government property, reckless endangerment or arson as the facts suggest.  If the person is found guilty, the offender will be ordered to pay a fine and reimburse the cost of the crime lab and Abandoned DNA Collector.  These sums would then offset the cost of collection and storage.

Another anticipated benefit of such a proposal is that, once implemented, it would help to deter persons from abandoning their DNA inappropriate places.  Cleaner beaches and reduced fire danger from fewer cigarette butts being carelessly discarded, and the decreased likelihood of stepping in or sitting on chewed gum are laudable goals in and of themselves.

What do you think of this proposal?  Let’s talk about it in the comments, below.  If you support this proposal, contact your state lawmakers and urge them to implement it in your state.  If you don’t support this proposal, at least stop discarding your gum and cigarette butts inappropriately.

References

Aldhouse, P.  (2013, June 10).  Artworks highlight legal debate over ‘abandoned’ DNA.  New Scientist.

Bazelon, E. (2013, June 3).  They’re Coming for your DNA.  Slate.

Collins, D.  (2011, October 16).  Police Wary of Giving DNA Samples.  Huffington Post.

Gambino, M.  (2013, May 3).  Creepy or Cool?  Portraits Derived from the DNA in Hair and Gum Found in Public Places.  Smithsonian.

Objkshn.  (2014, Dec. 1).  The Defamation of the Criminal Justice System.

Office of Justice Programs.  National Institute of Justice.  (2015).  DNA Backlog Reduction Program.

Smith, M.W. (2008, September 1). Swallowing gum.  WebMD.com

DON’T BE A TRUE TWIT.

true twit

I follow.
A DM informs me the person I followed uses TrueTwit.
I unfollow.

And so goes the cycle, where one person, in an effort to deter spam from others, instead becomes a spammer themselves, in a most rude and obnoxious manner.  

Friendly Tip:  If someone extends to you a gesture of friendship or respect, do not respond by accusing them of evil intents, by subjecting them to spam and by forcing them to do tasks to prove themselves to you, in response.  If so, you might find that gesture of friendship or respect has been rescinded.

TRUE TWIT USERS:  Hostile, lazy, rude or just dumb?  The automatic DM that those who join True Twit generate to those who seek to follow them is less than 140 characters.  Yet, in that short space, I can learn and deduce that the user I had intended on following is hostile, lazy, rude or dumb.  Maybe all four.  But at least one.  I don’t need to narrow down the particular character trait that led this TRUE TWIT to sign up with TrueTwit.  I don’t want to follow those who are hostile, lazy, rude OR dumb.    Thus, the use of this service signals to me, “this person is not worth jumping through hoops to follow.  This person does not want me to follow.  Unfollow now to avoid repeated DM demand-spam.”  But that is what I conclude.  What did I know that led me to that conclusion?

First, what is TrueTwit?  Succinctly stated, “TrueTwit is a computer that asks a human being to solve a captcha puzzle to prove they are not a computer.”  (Munger, 2013, para. 2.)  

Below is an example of the advertising and hoop-jumping subjected upon the person who unknowingly follows a TRUE TWIT.  If you want to follow a TRUE TWIT, you have to prove to the satisfaction of a computer that you are not a computer and you have to subject yourself to advertising so someone else can avoid the possibility that you would have sent them advertising.  

TrueTwit

TRUE TWITS APPEAR HOSTILE:  So this person I reached out to follow doesn’t say, like so many others do, “Hey, Thanks for following me.  I appreciate it.”  No – instead, the reaction is, in so many words, “Prove to me you aren’t a computer.”  Really?  That’s the first way you respond when someone says, “Hey, I think that your tweets might be interesting enough to add to a feed of other interesting tweets” by accusing the person with the arm extended in greeting of being a computer and not a person?

Just being accused of being a computer is a bit off-putting, but it’s even more abrasive when that accusation comes from a computer-automated program.  You want ME to prove that I’m not a computer, but I have no reason to believe that YOU are not a computer, since you have not sent me a personal, but instead a computer-generated message. 

TRUE TWITS APPEAR LAZY:  Dare I say it, but the TRUE TWITS also come off as believing their time more valuable than my own.  On their end, it would take but a click to go to my profile and then no more than 10 seconds to scan my most recent tweets to realize that they are not computer-generated spam.  So, to avoid 1 click and 10 seconds of their time, I am compelled to go to a website, view an advertisement that is making money for TrueTwit and decipher one of the more difficult-to-decipher captcha’s to prove I am a person.  I have to grab my reading glasses and usually request a few screen refreshes before I get a captcha where I can figure out all the blurred and distorted characters.  Definitely a few annoying minutes of my life; minutes spent proving myself to a stranger who is too lazy to validate I am a person on his or her own.  Minutes spent proving I’m not a computer TO a computer.  Minutes spent proving I won’t waste the other person’s time with unsolicited advertisement, by having to subject myself to that same unsolicited advertisement.

And for what?  For all that trouble – does the person send you a “Certificate that you are a Human Being”?  Do you get a lapel pin for all your hard work?  Nothing.  You just have the privilege of being able to follow someone whose time is more important than your own.

TRUE TWITs demand that others jump through time consuming hoops yet are unwilling to expend any time on their own.  Any.  Not even 10 seconds.  Not even one mouse click.  Doesn’t bode well for any tweets they may cause to send – as these are likely to involve the least amount of effort necessary.  They won’t bother to link to sources or bother verifying if their facts are correct.   

Indeed TRUE TWITs don’t really want followers who follow them because of who they are and what they tweet.  They would rather have AUTOMATIC followers that TrueTwit sends their way.  TRUE TWITS inadvertently repel and repulse real followers while encouraging mindless follows by whoever a computer sends their way.    

If you are a TRUE TWIT and you take exception to being called lazy, go ahead and take a few seconds to type “True Twit spam” into a Google search box and review all the entries of bloggers explaining why True Twit is, itself, spam, how True Twit is using its users to generate spam and/or viruses, how True Twit does not do what you think it does, and how so many tweeters like myself don’t want to follow TRUE TWITs or be subjected to the spam generated by TrueTwit.

TRUE TWITS APPEAR RUDE: 

The irony is that the TRUE TWIT generates spam in order to prevent spam.  How insensitive!?!  If you don’t want spam, why would you respond to every single user who attempts to follow you by generating spam to them through a computer-automated application?  Isn’t that what you are trying to avoid?  Why would you think I would enjoy your blatant spam and such blatant spam would in any way motivate me to want to prove to you I’m a human?  And why would I want to follow a rude tweeter?  Would seem I would only be getting a lot of rude tweets added to my feed.

TRUE TWITS APPEAR DUMB:

TRUE TWIT does not deter spam.  TRUE TWIT deters followers; followers who are people.  Likely, the TRUE TWITS don’t know this.  They reveal how they are relative neophytes to Twitter, otherwise, why would they bother with this application?  But here are the realities:

  1. Spam can be generated by someone who doesn’t follow you.
  2. Spammers aren’t just all computers.  There are people who maintain these spam accounts.  Those people can complete the captcha so that you won’t know they are spammers.  And still spam you.
  3. When you receive spam, you can block the account at that time (one click), instead of accusing 100% of those who seek to follow you, in advance, of nefarious purposes.
  4. People can “follow” you without following you.  You can be placed on a private list that is only visible to the user and not to you.  Up to 5000 accounts can be on a single list.  The spam program would rather list you without you knowing than follow you and get outed by another computer.  So the evil you seek to avoid is less likely to use the follow feature.  Instead, you repel and push away others who expressed genuine interest.
  5. Block function on twitter just blindfolds you to the tweets of that person.  That person can still comment about you (you just won’t know) and they can still view all your tweets – by going to your profile.
  6. By sending the person who wanted to follow you a link to TrueTwit and requiring that they click on this link, you are directing computer-generated spam to a potential follower.  That link, at a minimum, is designed to raise money and generate advertising revenue for TrueTwit.  That’s at a minimum.  At it’s worst, that link could be virus-laden and provide access to others with nefarious intent access to the hard drive of the person clicking on the link.  By associating yourself with this application, you become a co-conspirator to deliver spam or engage in criminal hacking.

This information and much, much more is easily ascertainable with some Google searches.  If not aware of this information, what responsibility do you bear to make yourself aware?  Can I expect your tweets will be equally uninformed and unresearched?  Will facts be trumped by convenience?  Smart is sexy.  Dumb is as dumb does. 

TRUE TWITS:  THE LIST

So – if you insist on making me jump through hoops when I reach out to follow you, I conclude you don’t really want me to follow and are somewhat put out by my request.  Apart from no longer wanting to follow someone who greets me in such a hostile and rude fashion, I also have no motivation to expend effort proving myself to someone who has demonstrated that he or she will not expend minimal effort on his or her end and wants me to do all the work.  So – now when I get the TrueTwit DM, I unfollow the person and put the person on a TRUE TWIT USERS list.   I also send a link to this page to explain why I’ve done what I’ve done, why I’m offended and insulted by the TRUE TWITs attempt to spam me, and why I will not follow the TRUE TWIT as long as linked to this application.

This list can be handy for others who seek to avoid following TRUE TWITs since most do not identify themselves as TRUE TWITs in their profile.  This list could also be a good resource for other TRUE TWITs who insist on remaining in the TrueTwit bubble.

The reward offered by TRUE TWIT to its users for signing up with its computer-generated spam service, is that although you will now personally offend most all others who seek to follow you, you will not need to jump through those same hoops when you seek to follow other TRUE TWITS.  Like street gangs, to avoid being victimized by their strongarm tactics, you have to join them.  But that price – the price of annoying and offending all legitimate followers – doesn’t seem to justify my personal convenience.

TRUE TWIT RECOVERY AND REHABILITATION:  The reason I have for writing and posting all this is two-fold. 

One – this is a lot of information to have to explain to each and every TRUE TWIT I inadvertently follow and then un-follow. Being able to provide the information in a link helps when otherwise limited to 140 characters per tweet.   And better that you should have to click on a link than those whose only crime was to seek to follow.

Two – If the TRUE TWIT uses this information provided to elect to disentangle themselves from TrueTwit and lets me know, I will happily remove them from the TRUE TWIT USERS list.  I may even elect to follow that person, once I know the person is a human and not a computer-generated spam account!

Reference:

Munger, S.  (2013, October 31).  TrueTwit:  From tragedy to farce.  Retrieved on January 31, 2014 from:  http://seanmunger.com/2013/10/31/truetwit-from-tragedy-to-farce/

The Intersection of Religion and Logic

The Intersection of Religion and Logic

WARNING:  Content not suitable for the very young or the very fragile.

faith and reason

I feel the same way toward those who hold uber-religious views as I do the very young who believe in Santa; I feel compassion toward a thought process they have found enjoyment, solace and comfort in, even if, as I believe, that belief system is fictional.  I want them to enjoy their chosen pastime, even if its foundational premises make me chuckle out loud given the logical absurdities.  I want to respect their chosen beliefs, even if those same beliefs would crucify me for mine.

But there is a line that can get crossed.  This essay directs itself not to personal faith or individual meditative practices, but to the practices and actions of organized religions and cults that impose on others inside and outside the organization who elect not to adhere to its rules.  This essay seeks to enlighten on when that line is crossed necessitating the intersection of reason with religion.    

FAITH, RELIGION, CULTS

First, let me distinguish between what I mean when referring to faith, religion and cults.  Faith is pure.  Faith has no ulterior motive.  Faith is belief: pure and simple.  Faith cannot be wrong.  Faith is what faith is.  Faith is personal, unique to each individual, and constantly evolving with the individual and society.

Religion, in contrast, is the organization of like-minded individuals to achieve like-minded objectives.  This is also a pure objective, as with faith, but something happens on the way to the bank.  Not unlike political lobbyists, the religious powers corrupt the process at its core.  The need of the religion to self-perpetuate supersedes the individual needs of those of faith who adhere to the religion.  Thus, policies that encourage more members (i.e. no birth control) and maximize the profits retained by the church (i.e. those who do not attend church go to hell) supersede logic and make the minister of a fire and brimstone church an extortionate thug holding eternal salvation hostage in exchange for blind faith and charitable contribution.   The suffering of the individual or the family becomes tantamount to the prosperity of the church. 

Cults are “immature” religions that have not withstood the test of time.  The premises of cults are no less or more outrageous and laughable than those of religion, but religion cloaks itself in the veil of “tradition,” claiming respect for its ability to survive throughout the ages.  Although “appeal to tradition” is a logical fallacy, nevertheless, the modern origination of most cults serves to discredit their validity.

Techniques of Neutralization:  At the end of the day, we all have to sleep with ourselves.  Thus, we find a way to rationalize our behaviors to make them consistent with the type of person who we wish to reflect to others and to ourselves.  So the sort of person with whom we choose to associate is important.  If we only elect to associate with selfish people, then the behaviors we would emulate would be selfish behaviors, believing those values to predominate.  If we only associate with racists, then we will promote racist actions seeking approval amongst our peer group.  Certain religions and cults attract a certain brand of hate and intolerance, thus allowing its members to sleep better with themselves at night, reassured that not only do they hold such hateful beliefs, but others do as well.  Thus, religion provides legitimacy to beliefs.  This is good when the beliefs are altruistic and generous, but can be dangerously parasitic in society when the beliefs are prejudiced and judgmental.

The uber-religious are cloaked in judgment.  There is the right way and the wrong way.  One way leads to Nirvana and the other way to Hades.  Though no one has been to either and back, many uber-religious profess to know, with certainty, what is right and what is wrong.  But eternal salvation or damnation is often not a significant enough consequence.  Instead, the uber-religious seek to use secular power to impose its judgment on all others:  believers and non-believers alike.  Call them Islamic Fundamentalists who shoot little girls in the face for wanting an education.  Call them Evangelicals who think the Girl Scouts organization promotes homosexuality and abortion, calling 12-year-old girl scouts, “lesbian baby-killers.”  Call them Hasidic Jews whose sexually-repressive practices align with the puritanical and women are to be silent, subservient child-bearers.  They seek to compel others to believe as they do through lawful authority.

I cannot offer respect to such belief systems and when challenged by their vocal supporters, I cannot remain silent allowing them to sell their hatred re-wrapped and packaged as religion.  When these individuals attempt to defend their hatred of others, by citing antiquated passages of dubious authenticity from a book elevated to higher adulation because its human authors claimed godly inspiration, that line has been crossed.

Faith, at its purest, does not exist to put others down.  Even the ugliest of persons, both inside and outside, is entitled to self-dignity.  But when persons seek to prop themselves up or those with whom they choose to associate, by demeaning others, putting others down and denying to others rights they hold sacrosanct for themselves, it is incumbent upon the child who see the nudity of the Emperor, to point this out to the crowd. 

Hatred, Inequality and Superiority:  Religion that seeks to prop itself up by the condemnation of others is hollow and meaningless.  Such a faith practice offers no moral repose to its holder.  A just God or Gods would support equality in opportunity, equality in love and equality in law amongst all others, and not just amongst those who look similar or hold similar beliefs. 

  • Misogyny and Misandry: Women and Men pitted against each other, with one believing the other inferior and subservient.
  • Racism and Ethnocentrism: holds that persons of a different race or ethnicity are inferior or superior.
  • Classism:  Proletariats, or the working class who do not own property, are pitted against the Bourgeoisie, wealthy capitalists with the wealthy and privileged seeking to deny opportunity and advantage to those less so.

All of these beliefs assert birth privilege:  the idea that when one is born, the gender, race, ethnicity, religion and social class will all pre-determine the earthly privileges and eternal salvation.  To deny the reality of the above would be naïve.  To pretend, however, that religious values support such claims, would be to give credence to the preposterous.  Faith is pure.  Faith is kind.  Faith tolerates.  Faith does not condemn.

One cannot simultaneously respect the individual autonomy of a gay or bisexual person while simultaneously asserting that those who are gay or bisexual are certain to suffer eternal damnation or denying to those who are gay or bisexual the same civil rights afforded to those who are heterosexual.  One cannot simultaneously respect the equality of others irrespective of skin color, ancestry or gender while simultaneously asserting societal privilege to some groups and denying those same opportunities to others.  These actions and beliefs are inconsistent with faith at its purest level.  These actions and beliefs support the promulgation of an organization at the expense of the best interests of society and the individual. 

LOGIC

Logic, conversely, is an absolute.  Logical syllogisms can be proven true.  Inductive premises can be sound or lousy. Logical fallacies are universal.  Logic, at its core, is capable of making sense and providing a structure for decisions.  Is it raining?  Then one needs an umbrella when outside to protect from the elements.  Prayer, alone, will make a soggy companion.

Indeed, through logic and its playmate reason, I am able to place religious texts in their proper historical context, affording them due deference as to the lessons they offer, but accepting their imperfections and inadequacies do not offer them blind allegiance. 

As to any historical, religious text, the following is generally true:

  1.  A mortal wrote the text.
  2. The mortal claimed that God inspired the text.
  3. A literal interpretation of the text cannot be maintained due to the myriad of direct  inconsistencies throughout.
  4. “Cherry picking” which passages to believe and which to ignore or reject renders the entire manuscript suspect in its application or authority.
  5. Modern day interpretation is based on translation from other languages, with errors in translation attributed to lack of knowledge of the intricacies of the language or an imprecise, vague or misleading translation.
  6. Political figures and others in positions of power have revised the document to further their political and personal agendas.  Revision includes insertion of religious text as well as exclusion of others.
  7. Games like “telephone” and “whisper down the lane” highlight the likelihood that earlier versions of actual events preserved through oral tradition, might have been altered in the retelling.
  8. The passages within are based on multiple levels of hearsay without evidence sufficient to attest to their reliability such that they would be inadmissible in a court of law as valid evidence of the truth of the matter asserted.
  9. The passages were not subjected to peer-review process necessary to elevate sources within one’s field to scholarly sources worthy of respect of experts and scholars.

Imagine if, thousands of years from now, the archived compilation of tweets maintained in the Library of Congress is discovered and imported with significance beyond its original import.  Bill O’Reilly has claimed God speaks to him in dreams.  Will his subsequent publications be referred to as the “Gospel according to Bill” and afforded irreverent status as a result?  The biblical quotes from eras long bygone are no more or less compelling as evidence of the cultural movement of the time than are the globe’s collective tweets.  But, like the impulsive and uninspired tweets of today, there is no reason to conclude the passed down passages of the old and new testament to be any more reflective of greater truths or religious ideals.    

HISTORICAL and CULTURAL CONTEXT

Despite its glaring inaccuracies and inconsistencies, there are still benefits to a proper contextual understanding of these texts.  For example, the Bible offers a glimpse back into history; as exaggerated as that history might now appear.  Certain factual truths can be established, offering some historical perspective, though too often these truths are instead mistakenly offered as testament to the literal accuracy of the remainder of the text.  The Bible also offers important lessons on morality, often through the parables and other teachings of Jesus and stronger condemnations in the teachings before he was born.  While imperfect in their origins and retention, religious texts such as the Bible continue to offer an understanding of the moral and religious evolution over the years and the influence of certain emergent leaders. 

Because of the deference afforded these texts and to religious institutions, they were helpful to fill the void not yet reached by science, to protect a population by near certain death, to promote policies intended to grow the community in a time of abundant resources.  Certain practices not mentioned in the religious treatises were nonetheless promoted as religiously-inspired by religious leaders to further the safety and welfare of its followers and to help establish the importance of religion across all stratospheres of ones’ life. 

For example, the kosher practices of the Orthodox Jewish beliefs originated from a need to protect communities from the sickness plaguing certain foods when not adequately prepared.  Certain precautions have taken on modern day extremes, however.  While allowing dairy products to co-mingle with meat products could have spread disease in the middle ages when refrigeration and pasteurization were not yet invented, the modern day interpretation requiring separate refrigerators for dairy and meat would appear to be an unnecessary application of a once-necessary rule.  The religious leaders provided a valuable service, deterring their followers from ingesting unsafe food products, by tying the rules for food consumption to the tenets of the faith.  Modern day, however, that rule and its application requires a more modern interpretation.

Priests in the Catholic faith were permitted to marry through the fifth century.  Then, property and estate law of the era was allowing the property of the Church to pass to the widows and children of the priests upon their death.  Prohibiting priests from marrying and engaging in sex would eliminate this problem and property would return and remain with the Church.  Thus, the rule was born out of the fiscal practicality of the era, but this same motivation no longer exists.  After fifteen hundred years of practice, its consequent is to attract those who are sexually attracted to children as the prohibition against marriage would provide cover as to why one is still single and the respectability of the church would provide access to children.    Allowing priests to marry would eliminate the cover such prohibition provides to pedophiles and would dilute the deviant population in its ranks.  Allowing priests to engage in sex would free them of the psychological repercussions caused by sexual repression and would further dissipate the potential for predatory behavior toward children.  Longer treatises could be engaged in on this subject alone.  Another time. 

The point is that the religious organization and the treatises it reveres to support its beliefs and practices are relevant, contextually, for the peace, security, and stability they offered to the society.  Thus, it is possible to compare the bemused reverence of religious texts as historical artifacts to the familial tradition of reading “’Twas the Night before Christmas” each year.  Each promote to the audience the need to engage in positive behavior to reap the rewards of a benevolent (and sometimes harsh) master of the universe.  I, therefore, find the two populations – that of children believing in Santa Claus or that of adults believing in an omnipotent omniscient God, virtually indistinguishable in their need to believe.

I find it magical and fanciful to allow room for the “unknown” and the “unknowable” in my life.  I allow for the possibility that no one person and no one discipline holds all the answers.  I consider the journey within ourselves to be equally adventurous to the journey of travels through many lands. 

While I want to help guide my son on his spiritual journey, his beliefs will be better influenced when they are personally motivated and not externally imposed.  There are those who seek to know the mysteries of magicians and others who would rather revel in the fanciful belief that the law of physics are malleable for some.  So again my thoughts return to degree and receptivity.  When is one ready to learn a truth and abandon a comfortable but false belief? 

Not wanting my son to distrust me in later years, I considered revealing the truth behind the origination of presents under the Christmas tree but elected not to do so.  I instead wanted my son to experience the mystery of an altruistic and generous benefactor.  Yet, even such a belief was conditioned on a judgment.  Good girls and boys received presents.  Bad ones got nothing but coal.  Even Santa was harsh in his condemnation.  The fictional narrative promotes the idea that the poor who cannot afford presents are less-than-worthy in the eyes of a judgmental “Saint Nick.”  Thank goodness for social programs such as “Toys for Tots” who help to bridge those inequities.

One day, my son began to question the illogicality of a jolly old fat man who delivered toys by flying on a reindeer-driven sleigh and gained access to people’s homes through their chimneys.  When he asked me, one day, if Santa was real, I told him the truth as I knew it:  the presents he always received Christmas morning were those I had purchased for him.  I never regretted the foundation I provided my son in the magical and mysterious.  After all, if one is to understand logic and reason, then it would be equally helpful to understand its opposite and complement:  faith.  But there comes a time where the further exploration of that faith requires challenge through critical thought and rejection of logical fallacy.  Anything else would be an abdication of reason in exchange for the security afforded by blindness.

science of santa

ENCULTURATED BELIEF

Those most enlightened are those with the broadest knowledge of world religions and enculturated understanding. Conversely, those least enlightened are those with the narrowest viewpoints and limited enculturation.

My own emergent philosophy and faith is the culmination of 46 years of experiences, readings, and internal reflections.  I gain my understandings through my upbringing in Catholicism, my understandings of Christian-Judeo teachings and my exploration of Wicca, Taoism and Tantra.  I embrace the reality that my spiritual journey is still in progress and will likely continue until my earthly body shall cease to draw air and circulate blood.

The broader my understanding becomes, the more similarities that present themselves.  For example, when Noah’s Ark was crafted, there had already been hundreds of similar flood stories that pre-dated Noah.  Christians who believe Noah’s Ark is a literal depiction of an actual event are not knowledgeable of all the other similar myths from other cultures that would suggest it rather egocentric to blindly accept one such myth as true while rejecting out of hand all others.  The unwillingness to expose oneself to counter viewpoints helps to foster blindness, not englightenment.

WHEN TO INTERCEDE

I’ve previously expressed an understanding of the individuality of each person’s faith and spirituality.  How could I deign to superimpose my own beliefs at this stage of my journey upon another who has not yet reached this stage?  I wait until prompted to do so; much as my son demonstrated he would be receptive to such an understanding about Santa Claus, I wait for signs and manifestations that another seeks broader understanding and I have insights that would prove beneficial.  This is elusive, sometimes and often appears a Sisyphean task.  

sisyphus

The uber-religious are not likely to shift in their beliefs to any appreciable degree.  The indication of when the time is right, or when the line gets crossed, may be based on the needs of others, not the readiness of the uber-religious.  While it might be ideal to serve only the ripest of apples to the hungriest of people, there are occasions when those who are not-so-hungry would find benefit to eating an apple and even an unripe apple to a hungry person could offer more benefit than foregoing eating anything at all. 

The “hungry” in this case are those who religion seeks to deprive and deny; the victims of hate who are told they are hated not just by mere mortals, but by God himself.  Remaining silent in the face of such hatred would make such silence acquiescence to such Godly condemnation.  Allowing one group of people to assert superiority over another would sanction such practices.  So, it is for the victims of religious hatred and intolerance that these alleged religious freedoms will eventually clash with my logic and values. 

death of socrates

The spiteful, vengeful and retaliatory nature of the Greek and Roman Gods and Goddesses eventually led to the adoption of a single God that manifested itself in three forms:  son, father & holy spirit.  Socrates was convicted of corrupting the youth of Athens and sentenced to die, for suggesting through his philosophical questioning, whether the multi-theistic views of immortal beings who behaved so immaturely, was worthy of emulation.  In contrast, Jesus was a kind and loving man whose actions cannot be criticized.  Thus, a corrupted multi-theism gave way to a pure single theist. 

MODERN DAY

Or did it?  Instead of supporting the sick as would Jesus have done, modern day uber-religious would call such individuals moochers and protect the right of insurance companies to make a profit over the opportunity to provide affordable health care for all.  Instead of supporting women as would Mary require, modern day uber-religious throw figurative stones at those who could never achieve the unattainable ideal of virgin motherhood.  Instead of supporting those of other races and ethnicities as the slavery of the Israelites at the hands of the Egyptians condemned, modern day uber-religious would claim a God-given right to hold others in proximate servitude because of monetary superiority.

The right of one’s religious freedom and freedom of speech cannot exist to impose upon the rights of others.  When one’s religion demands the conversion of others through proselytizing, their need to attain salvation overreaches another’s autonomy and free will.  The right to free speech is not the right to convince or persuade others you are right.  The right to freedom of religion is not the right to impose your religious choices upon others.  The right of association is not the right to deny to others with whom you elect not to associate, equal rights and opportunity.

No religion can legitimately claim to condemn others who engage in consensual sexual practices when those sexual practices may be different from their own.  No religion can legitimately seek to deny adequate health care to those who most require it.  No religion can legitimately seek to repress one ethnicity or race and enrich another.  No religion can claim superiority as between genders.  No religion can claim wealth affords advantage. 

So while the uber-religious are free to believe what they will, they should not accept me to tacitly tolerate their efforts to manipulate me to think as they do.  I will not be persuaded by a claim that God is a judgmental being that holds rich, white straight men in favor and thinks lesser of all others.  My world view finds such a position illogical.  My values for compassion and tolerance require me to speak out against such illogicalities when they are destructive to others, lest I acquiesce through my silence. 

IDEOLOGICAL INCONSISTENCY

I am lucky to live in a time and a place that permits me to challenge the repressive intolerant and hateful views of others when offered up as religious precepts without the certain fear of a torturous death.  Calling others on their hatred and not allowing religions to espouse hatred would seem a simple response, not laden with much danger or peril.  Makes you wonder, then, why more people don’t. I can’t imagine if there is a singular destination in the afterlife that rewards those most deserving, that it will have much patience for those who elected to remain silent in the face of adversity.  But that sounds like the judgmental intolerance that I seek to upend.  Ironic, no? 

 

The Defamation of the Criminal Justice System

defamng justice

The Defamation of the Criminal Justice System

Good name in man and woman, dear my lord,
Is the immediate jewl of their souls;
Who steals my purse steals trash; ‘tis something, nothing;
‘twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
-William Shakespeare, Othello

We have two very different criminal justice systems in the United States.  One that is the reality and the other that exists only in the minds of the entertainment and news media, and the viewers they inform.  The result is an American public that is being misled about the realities of the criminal justice system and this deception has real-life consequences to those the system is meant to serve.

“You have the right to remain silent.  Anything you say can, and will, be used against you.  You have the right to an attorney.  If you cannot afford one, one will be appointed for you.”  We hear this phrase over and over again.  High school students may not be able to name the Vice President of the United States but they know that these words recited constitute the Miranda warning.

As a defense attorney I get contacted by prospective clients who are quick to tell me that they were not “read their rights” when they were arrested, confident they are that this will provide procedural advantage.  Most are very surprised to learn that the police were under absolutely no obligation to read a suspect his or her rights upon arrest.

The Miranda warning as commonly depicted in crime drama series and even in so-called “reality” shows like “COPS” is not the entirety of the Warning read to suspects.  The remainder provides, “Having these rights in mind do you now wish to waive those rights and speak with me now.”  But police have no intention of conducting a formal interrogation in the police car on the ride to the station.  Thus, they are not obligated to even advise the suspect at that moment.  Instead, the advisal will occur, if it happens at all, immediately prior to the formal interrogation.  Most commonly, suspects are presented with a written form containing their rights and they are asked to sign the form so police and prosecutors can later prove that the suspect indeed waived those rights.

Indeed, there is no practical purpose to provide the Miranda warnings upon arrest and tactical considerations would frown upon doing so.  Police can get evidence surreptitiously by placing two cuffed arrestees in the back of the patrol car and leaving them to talk, unwittingly believing that they are alone, all the while the audio recording device in the police cruiser is capturing all they are saying.  This is not a rogue practice but standard operating police procedure.  (Ruttledge, 2008, para. 2 – 3.)    Yet millions of television viewers are led to believe otherwise.  Why?  Perhaps it gives the actors something to say while putting on the cuffs.  Perhaps since every other movie and crime drama series does this, it has become expected in the industry.

Entertainment Media

This is a fictional genre so viewers who watch shows like Law & Order, CSI and Criminal Minds should know the difference between fictional content and reality, right?  Not so.  The problem is that while there is a disclaimer on most shows that the facts portrayed are fiction, the viewer still mistakenly believes that the backdrop for those facts, the criminal procedures portrayed, is accurate depiction of our criminal justice system.

Ask anyone who modernly teaches Criminal Procedure to undergraduate students and you will find resounding support.  Students enter such classes mistakenly believing they have a decent understanding of the criminal justice system from watching such shows.  The reality is the instructors have to de-program and unwind all the falsehoods these shows depict.

While the misinformation places an additional burden on criminal justice faculty, the challenge for the criminal defense attorney representing a client whose liberty is threatened can be untold and provides few opportunities to re-educate.  Jurors on a case do not come to court with a list of episodes they have watched.  The jurors believe that the procedures they have watched are accurate and the attorneys do not know the extent of each individual juror’s misunderstanding.  This has dangerous consequences.

When “The Practice” was popular, I had occasion to watch an episode when Dylan McDermott, playing the role of defense attorney Bobby Donnell, told a jury in closing argument, “I know my client is innocent.”  Six words.  Makes for good drama.  But if I say those words in closing argument, the prosecutor is entitled to a mistrial and I could be fined in contempt for making such a rookie mistake.  I cannot vouch, personally, for my client.  That would make me a witness and entitle the prosecutor to cross-examine me.  So I cannot make such an assertion ever.  Yet I do not know which of the jurors may have seen that particular episode and are expecting, if I believe my client to be innocent, for me to say as such.  So instead, I have to explain this to every jury in every case.  That is just one of the potential ways a misinformed juror could end up wrongfully convicting the defendant based on Hollywood’s reckless disregard for the truth.   This “alternate-reality” depicted in crime drama series does not always inure to the benefit of the prosecutor.

CSI Effect:  This is now a criminological term created by the misinformation in one particular series, CSI.  (Rath, 2011).  Much like with those who watch its companion series Law & Order, viewers universally understand that the factual scenarios depicted on that series are not true.  They may also understand that not all of the forensic techniques showcased are grounded in reality. But without an adequate understanding of the realities of the system, juxtaposed against the fictions presented as truths, the juror is ill-equipped to adequately assess the difference between the two.

CSI has created an entirely new occupation – that of the Crime Scene Investigator.  This position does not exist in one person or in one field of study.  Students enroll in college programs hoping to one day become a “Crime Scene Investigator,” motivated by this series.  Yet this position is unattainable.  There is the entry-level position of crime scene evidence technician.  These are the individuals who collect the evidence.  Then there are those individuals who look under the microscope and conduct scientific analysis.  These are the forensic examiners.  Finally, there are police detectives who interview witnesses.  One person does not do all three tasks.

In talking with jurors after they have rendered verdicts favorable to my client, it is common to find that they were disappointed with the lack of forensic evidence in the case and found the police work to be sloppy and incomplete as a result.  Yet many criminal prosecutions neither need nor support such.  Fingerprints are not going to be taken at all burglaries.  Fingerprints are not capable of being found on many surfaces.  Some surfaces would have so many different fingerprints, isolating to the criminal would be impossible.  Fiber evidence, paint analysis, DNA:  these techniques are costly.  Only in the most serious cases will such costs be justified.

The prosecutor in the Casey Anthony murder trial pulled out all the stops, forensically.  They were able to prove that the “smell of death” was present in the trunk of the defendant’s car.  Yet the jury acquitted Casey Anthony, much to the astonishment of the American public.  Many ascribe this failure-to-convict to the ‘CSI Effect.”  (Hoffmeister, 2011, para.  8).  The prosecutor, by relying so heavily on forensic analysis in its presentation of the case, may have unwittingly perpetuated this.  While proving certain facts forensically, the prosecutor was unable to prove manner or cause of death.  In the past, the circumstantial evidence of her disappearance might have been sufficient to overcome this absence.  But not modernly.  Jurors want and expect more, even while acknowledging CSI is a fictional representation.  Jurors, with “no legal training or real-life experience with the criminal justice system . . .  are without any frame of reference for how trials operate beyond what they see on television.”  (Hoffmeister, 2011, para. 2.)

The role and function of the defense attorney is also routinely impugned on these series.  Retained attorneys are depicted as high-priced shysters who will say or do anything to secure the acquittal of his or her client.  Conversely, the public defender is portrayed as feeble and inept.  Yet none of these depictions resemble reality.  Criminal defense attorneys, unlike their counterparts who practice Civil Law, are less motivated by the material gains in the profession and more motivated by the higher ideals of defending the Constitution.

In a companion piece,I address how the vast majority of cases, approximately 95%, do not go to trial, but plead guilty. (Durose & Langan, 2007.)   In those cases, it is incumbent upon the defense attorney to review the facts to ensure that the crimes alleged are supported by the evidence and that the government acted lawfully within the confines of the Constitution.  In this manner, defense counsel serves a quality control function.  The defense attorney ascribes to the Due Process model philosophy which believes that if the procedure is fair, the outcome should also be fair.  A “win” for the defense attorney, therefore, is a fair outcome and NOT an acquittal.  Prosecutors calculate their win-loss record on convictions and acquittals only.  Thus, in many cases, both prosecution and defense may consider the case that is fairly resolved by conviction, to be a “win” or a successful outcome.  By routinely portraying defense counsel as ethically bereft and chasing after the almighty dollar, the media does a disservice.  Jurors are more likely to believe prosecution experts than defense experts, believing the defense attorney will say or do anything to secure an acquittal.   This creates a bias in favor of the prosecution that shifts the burden unfairly to the defendant.

Reality TV

At its core, however, entertainment television is designed to entertain.  Reality TV, however, which purports to adequately represent the reality of the system, is much more nefarious when it seeks to abandon the truth in exchange for ratings.

Watch most “COPS” episodes and you will see the officers advising suspects of their Miranda warnings upon arrest.  This has confounded me for decades:  why?  I’ve concluded in those cases, it is likely the videographer or producer telling the officer to advise the suspect since its viewers will be expecting they do so.  When shows that purport to be “reality TV” deliberately present and promote a reality that does not exist, this helps to further confuse the public understanding of the true reality.

Beyond Scared Straight:  Perhaps most egregious is the series, “Beyond Scared Straight,” which airs on the Disney A&E network.  In this series, juveniles who get arrested for minor acts of delinquency are incarcerated for the weekend in order to “scare them straight” and deter them from continued criminality.  The only problem?  Scared straight programs do not work.  In fact, in repeated studies, juveniles who participate in the “Scared Straight” programs are almost twice as likely to reoffend as those who delinquents who do not.  (Aos, Phipps, Barnoski & Lieb, 2011.)

Criminologically, this makes sense.  Much of the deterrence of incarceration comes from the fear of the unknown.  The fear of the unknown is taken away from these participating juveniles who, because of the nature of their brief incarceration, are held in a sterilized and protected environment.  The juveniles are exposed to other delinquents who then share their criminal exploits with each other.  In the end, the juvenile, whose brain is not fully formed to appreciate risk and consequence, rationalizes that the experience wasn’t so bad after all and it might be worth committing another delinquent act.  (Sullivan, 2011).  Indeed, as this program has proven to be cost-inefficient and counter-productive to its stated goals, the federal government refuses to allow any federal funding to be used for these programs.  (Hornberger, 2011, para. 5.)

When A&E decided to air the story, it was flooded by the opinions of criminologists and criminal justice policy makers, who provided A&E with the evidence-based analysis showing its ineffectiveness and its danger to the continued delinquency of youth.  Their response?  To air yet a new series of episodes.  (Hornberger, 2011, para. 7.).  A petition, which is now closed, circulated in a failed attempt to require A&E to tell the truth about “Scared Straight” programs.   (Campaign for Youth Justice, 2011).

News Media

Equally disturbing is the inability of the News Media to accurately report on the criminal justice system.  Burglaries, a property crime defined as the entering of a building with the intent to commit a theft or a felony, (FBI, n.d.) are commonly described as robberies instead.  Robberies are, however, a violent crime and involve the taking of property through force or fear from one’s immediate presence.  (FBI, n.d.).  Thus, it would be an impossibility to report that an individual returned home from work one day to find that his or her house had been “robbed.”  Houses cannot be robbed, only people can be.

Another common mistake is the confusion between jail and prisons; a confusion that is exacerbated by realignment practices such as those in California that shift the population of one facility to another.  A prison run by the state and is intended for long-term commitments, generally over one year.  Jail, on the other hand, is a city or county facility and is intended for shorter sentences under one year as well as those who are unable to post bail and are awaiting trial.  (BJS, n.d.)

But the most egregious is how news media report on acquittals.  The reporter will indicate that the defendant was found “Innocent” after a jury verdict.  Unlike the confusion between robbery and burglary or jail and prison, both of which reflect an ignorance but not a malice, the decision to report not-guilty verdicts as “innocent” verdicts is intentionally made.  News outlets, worried that their reporters will make a mistake and not read the tele-prompter correctly, avoid using “Not Guilty.”  If the news reporter mistakenly claims that an acquitted defendant was found “Guilty” instead of “Not Guilty,” a potential civil suit could arise.  The irony is that in order to avoid the reporter making a mistake, the news agency makes a conscious and deliberate decision to report it incorrectly.

We do not have a verdict of “innocence” in our country.  Scotland does.  Scotland has three potential verdicts:  guilty, not-guilty and not-proven.  (The Scottish Government, 2013, para. 1.)  We do not.  Our verdict of “not guilty” could mean that the jury found that the defendant was innocent.  The verdict, however, could also mean that the jury found the prosecutor had not proven guilt beyond a reasonable doubt.  To falsely represent an acquittal as an “innocence” verdict is to misinform the public about what “not guilty” means.  Jurors may be loath to render a not guilty verdict simply because they do not believe the defendant is innocent, and irrespective of whether the prosecutor has proven its case to its standard.

Proof of Defamation

To prove that one’s reputation has been defamed, the litigant will have to prove that there was a published statement, that the statement was false and that the statement was injurious.  (Doskow, n.d., para. 3.)  As demonstrated above, there are many false statements perpetuated about the criminal justice system by the entertainment and news media.  The inability of the lay person to adequately distinguish between the false reality portrayed by the media and the actual system could lead to wrongful convictions or unnecessary acquittals.  When public figures sue for defamation, they have the additional proof of demonstrating actual malice.

“’Actual malice’ means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth — for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.”   (Doskow, n.d., para. 12.)  This can certainly be proven as to Disney’s A&E network’s reckless portrayal of the “Beyond Scared Straight” program despite overwhelming evidence of its ineffectiveness and counter-productiveness.  This network has deliberately chosen the profit the show generates and rejected the truth.

This “actual malice” standard can also be proven as to news agencies that deliberately elect to report verdicts as “innocent” in order to avoid being sued by an individual for making a mistake.  Perhaps, if the news agency was worried about a defamation lawsuit on behalf of the taxpaying public for defamation of the criminal justice system, it would have the proper incentive to report on the truth instead of creating a fiction.

References:

Aos, S., Phipps, P., Barnoski, R. & Lieb, R.  (2001). The comparative costs and benefits of programs to reduce crime. Olympia, WA: Washington State Institute for Public Policy.  Retrieved on December 1, 2013 from:  http://www.wsipp.wa.gov/rptfiles/costbenefit.pdf

Bureau of Justice Statistics.  (n.d.)  FAQ Detail:  What is the difference between jails and prisons?  Retrieved on December 1, 2013 from:  http://www.bjs.gov/index.cfm?ty=qa&iid=322

Campaign for Youth Justice (2011).  Demand A&E tell the truth about ‘Scared Straight.’  Change.org.  Retrieved on December 1, 2013 from:  http://www.change.org/petitions/demand-ae-tell-the-truth-about-scared-straight

Durose, M.R.& Langan, P.A.  (2007, July 1).  Felony sentences in state court, 2004.  Bureau of Justice Statistics Bulletin.  Retrieved from:  http://www.bjs.gov/content/pub/pdf/fssc04.pdf

Duskow, E.  (n.d.)  Defamation law made simple.  NOLO.  Retrieved on December 1, 2013 from:  http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html

Federal Bureau of Investigation.  (n.d.)  Burglary.  Uniform Crime Reports.  Retrieved on December 1, 2013 from:  http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/property-crime/burglarymain

Federal Bureau of Investigation.  (n.d.) Robbery.  Uniform Crime Reports.  Retrieved on December 1, 2013 from:  http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violent-crime/robberymain

Hoffmeister, T.  (2011, July 7).  Did ‘CSI Effect’ sway Anthony jury?  CNN.  Retrieved on December 1, 2013 from:  http://edition.cnn.com/2011/OPINION/07/06/hoffmeister.anthony.jury/

Hornberger, N.G.  (2011, August).  National juvenile justice experts:  Invest in proven strategies, not “Scared Straight.”  Reclaiming Futures.  Retrieved on December 1, 2013 from:  http://www.reclaimingfutures.org/blog/juvenile-justice-reform-Scared-Straight-CJJ-position-statement

Rath, A.  (2011, February 5).  Is the ‘CSI Effect’ influencing courtrooms?  NPR.  Retrieved on December 1, 2013 from:  http://www.npr.org/2011/02/06/133497696/is-the-csi-effect-influencing-courtrooms

Ruttledge, D. (2008, March 1).  The Bruton rule:  Playing arrestees against each other can help you elicit confessions.  Police Patrol.   Retrieved on December 1, 2013 from:  http://www.policemag.com/channel/patrol/articles/2008/03/the-bruton-rule.aspx

Sullivan, I.  (2011, September 6).  The many things that are wrong with A&E’s “Beyond Scared Straight” program. Juvenile Justice Information Exchange.  Retrieved on December 1, 2013 from:  http://jjie.org/whats-wrong-beyond-scared-straight/

The Scottish Government.  (2013, June).  Reforming Scots criminal law and practice: Additional safeguards following the removal of the requirement for corroboration: Analysis of consultation responses.  Retrieved on December 1, 2013 from:  http://www.scotland.gov.uk/Publications/2013/06/1213/5

YOU HAVE THE RIGHT TO AN ATTORNEY. Kinda. Sorta. Not really.

Right to an attorney

Fifty years ago, the Supreme Court recognized that the Sixth Amendment right to counsel obligated state courts to provide counsel to felony defendants who could not afford to hire one.  (Gideon v. Wainright, 372 U.S. 355 (1963).)  Today, that right exists in name only for many criminally accused. 

As a private defense attorney, I have never worked for a public defender agency but I only have the utmost respect for the work that they do and the conditions they are compelled to endure.  When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are.  (Butler, 2013, para. 6.)  Those who never need the services of a defense attorney have little understanding of their importance in our justice system.  Crime drama shows falsely and unfairly portray the private ones as shady and the public ones as inept.  Many would be content if the defendant, assumed by most to be guilty of all charges despite the presumption to the contrary, received inadequate representation if that would assure that a conviction and retributive sentence would follow.  And this is why the inadequacies of the indigent defense system in the fifty states gets little attention and no public support.

In a companion piece, I address the contributions the media has made to the public misunderstanding of the role of the defense attorney.  In this article, I will address the how the implementation of this right at the state level has frustrated its purpose.

I often compare defense attorneys to dentists.  Both share similar unpopularity, except by those who need them most.  And while many cannot understand why I could defend criminals, I cannot understand why someone would want to put their hands in other people’s mouths.  The profession of defense counsel is not for everyone and those who pursue this career path usually do so because they are intrinsically motivated to defend the higher ideals of the Constitution against the overwhelming power of the government.

But imagine for a moment you need a dentist but your insurance plan does not permit you to select the dentist.  Instead, you are assigned a dentist.  You come to find out that you have been assigned to one of the best dentists in your area.  You are elated and relieved.  That is, until you try to make an appointment.  This particular dentist has been assigned so many patients, that the earliest appointment is not for several months.  You wait and wait in agonizing pain for months until your appointment.  And then, when it is finally your turn, you find out that the dentist has to see 50 patients a day, which means that each patient can only have 7 minutes of the dentist’s time.  This time barely allows the dentist to diagnose the problem, let alone do any significant work.  The result?  You leave the dentist’s office in just about the same condition you entered.  Did it matter that the dentist was one of the best?  Not when the dentist’s caseload is so overwhelming that the dentist is prevented from treating you effectively.

The Seven-Minute Attorney:  This is the plight of the indigent defender.  The court appoints cases to the public defender agency.  The court is not without a vested interest here.  This same agency is responsible for adding workload to the courts in motion and trial practice.  If the court assigns the public defender to an obscene number of cases, then the workload of the court will necessarily reduce.  The public defender will just not be able to attend to each case the way a retained attorney could.  While not representative of all public defender agencies, the National Association of Criminal Defense Lawyers has found that public defenders in Atlanta average only 1 hour per case, in Detroit they can spend only 32 minutes per case, and in New Orleans, clients average only 7 minutes of attorney-time.  (Levintova, Lee & Brownell, 2013.)

Seven minutes permits very little.  Seven minutes will not permit the attorney to review the discovery provided in its entirety nor request additional discovery that the client is entitled to receive.  Seven minutes will not permit the attorney to challenge constitutional irregularities that have occurred, such as an illegal search warrant or prosecutorial misconduct.  Seven minutes essentially only permits the attorney to stand at the client’s side while the client pleads guilty pursuant to a plea offer.  The attorney will have no basis upon which to recommend the plea offer be accepted or rejected, without the opportunity to meaningfully review the discovery, conduct further investigation and litigate appropriate issues.

The public defender agency is powerless to refuse the appointment.  Individual attorneys are powerless to object to the court or their agency that their caseload precludes their ability to effectively represent their assigned clients.  Those who have tried have found themselves without a job.  (Benjamin, 2013).  And the client also has no meaningful recourse.  The client will not be permitted to obtain another attorney on the claim that the appointed attorney has too many clients to effectively represent him or her. Instead, the client will have to wait until he or she is convicted and sentenced to appeal the decision.  And then, relief will still not be forthcoming.

Ninety-five percent of cases plead guilty.  (Durose & Langan, 2007.)  These individuals pleading guilty are hard-pressed to contest the inadequacies of their representation.  Many plea agreements require that the defendant waive his or her right to appeal.  Even without such a condition, the plea agreement itself precludes any challenge.  The defendant has admitted to the crime, under penalty of perjury, has waived his or her Constitutional rights in the process, and the courts are loathe to unwind a plea agreement a trial court has accepted. 

Effectiveness Standard of Review:  StricklandRealistically, this means only those that go to trial AND are convicted will be able to challenge the effectiveness of counsel.  And, just like the public does not expect or require much of defense attorneys, nor do appellate courts.  (Strickland v. Washington, 466 U.S. 668 (1984).)  The court has found no ineffectiveness where an attorney has slept through portions of the trial (Ex parte McFarland, 163 S.W.3d 743,748-49 (Tex. Crim. App. 2005)) or where the attorney had Alzheimer’s as yet undiagnosed during the trial (Dows v. Wood, 211 F.3d 480 (9th Cir. 2000).)  This is because the appellate court requires that the defendant prove that a different result would have likely been obtained with a different attorney.  Yet it is a logical fallacy, contrary-to-fact-hypothesis, to suggest that if something had been done differently, a different result would have occurred.  Such an argument requires a time machine to assess.  Anything else is pure speculation. 

Further, while the right to counsel is not just for those who are innocent or not guilty of the charges, the Strickland standard essentially denies the right of effective counsel to those who are guilty.  The court reasons where there is overwhelming evidence of guilt, that no other attorney would have achieved a better result, in order to deny any relief.  This is yet another logical fallacy:  that of begging the question.  Perhaps the evidence of guilt would NOT have been so overwhelming, had there been the opportunity to properly investigate and prepare the case for trial, and had the client been represented at the trial by a competent attorney with adequate time to attend to the client’s case.  “Justice Marshall was prophetic in his Strickland dissent, predicting that very few defendants would be able to satisfy the burden of proving prejudice.”  (Williams, 2009). 

Inadequacies in representation leave lingering questions.  Was the client really guilty?  Even if guilty of some charges is the person guilty of the charges for which they pled guilty?  Indeed, did a crime even occur?  The client, unfamiliar with the law and its requirements, is often unable to answer this question for themselves.  If the client is wrongfully convicted of a crime that did occur, this results in multiple injustices.  The state, at taxpayer expense, will incarcerate the innocent offender while the guilty offender(s) remains free and, having gotten away with this crime, is most likely to continue in his or her criminal enterprise.  And, should the unthinkable happen and you or someone you love is accused of a crime, will the existing system offer any meaningful representation? 

Attorney General Eric Holder Jr., recognizing a state of crisis in public defender systems nationwide has emphatically stated, “It’s time to reclaim Gideon’s petition — and resolve to confront the obstacles facing indigent defense providers. Most of all, it’s time to speak out — with one voice — to rally our peers and partners at every level of government and the private sector to this important cause.”  (Cohen, 2013, para. 7.)   The time is long overdue for the promise of Gideon to be realized. 

References:

Benjamin, M.  (2013, September 19).  Fresno County public defenders protest work conditions.  The Fresno Bee.  Retrieved on December 1, 2013 from:  http://www.fresnobee.com/2013/09/19/3507288/fresno-county-public-defenders.html

Butler, P.  (2013, March 17).  Gideon’s Muted Trumpet.  The New York Times:  Op-Ed.  Retrieved on December 1, 2013 from:  http://www.nytimes.com/2013/03/18/opinion/gideons-muted-trumpet.html

Cohen, A.  (2013, March 15).  Eric Holder:  A ‘state of crisis’ for the right to counsel.  The Atlantic.  Retrieved on December 1, 2013 from:  http://www.theatlantic.com/national/archive/2013/03/eric-holder-a-state-of-crisis-for-the-right-to-counsel/274074/

Durose, M.R.& Langan, P.A.  (2007, July 1).  Felony sentences in state court, 2004.  Bureau of Justice Statistics Bulletin.  Retrieved from:  http://www.bjs.gov/content/pub/pdf/fssc04.pdf

Levintova, H., Lee, J. & Brownell, B.  (2013, July 1).  Charts:  Why you’re in deep trouble if you can’t afford a lawyer.  Mother Earth.  Retrieved on December 1, 2013 from:  http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts

Williams, K.  (2009, May).  Does Strickland prejudice defendants on death row? University of Richmond Law Review.  43(4).  Retrieved on December 1, 2013 from:            http://lawreview.richmond.edu/does-strickland-prejudice-defendants-on-death-row/#_ftn11

Compersion and Jealousy: the good twin and the evil twin.

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Compersion and Jealousy

Compersion is such a recent concept, spell-check doesn’t even recognize the word and you cannot find a definition in mainstream dictionaries.  This is the definition offered up by Modern Poly:

Compersion: adj., the experience of taking pleasure in the knowledge that one’s partner is experiencing pleasure, even if the source of their pleasure is other than yourself. The feeling may or may not be sexual.

While this concept is commonly understood by those who practice polyamorous relationships, it has not yet found mainstream acceptance.  Yet it operates as does altruism and self-confidence, whereas jealousy, its evil twin, operates through its antithesis:  selfishness and insecurity.  The more I embrace compersion, the more I reject jealousy.  This concept is equally compatible with monogamy as it is polyamory and non-monogamy.

Jealousy needs no definition; we have examples all around us.  Jealousy is a destructive emotion.  Jealousy seeks to deny, repress and hurt.  Compersion, on the other hand, is constructive.  Compersion seeks to give, share and provide pleasure.  Imagine how many murders and assaults have been committed due to jealousy and insecurity?  What if, instead, we embraced compersion as a society and encouraged the idea that if you love someone else, then you should want that other person to experience pleasure?

With jealousy, the bearer of the emotion makes others accountable for his or her insecurity.  A lover is expected to conform to the stated or unstated expectations of another to avoid triggering a jealous response in that person.  The jealous person is rarely required to accept responsibility for the negative emotion and conform his or her behavior instead.  Outside relationships, however, we would not tolerate this, so why do we embrace it within the confines of dating and marriage?  Consider the following analogies:

  • A high school student is jealous of another student’s good grades.  Instead improving his or her grades or otherwise dealing with this jealousy, the student with the good grades is expected to stop performing so well.
  • A neighbor is jealous of the car another neighbor drives.  Instead of dealing with this jealousy, the neighbor with the car is expected to stop driving it or to sell it entirely.
  • An amateur athlete is jealous of the fame and success of professional athletes.  Instead of dealing with this jealousy, the professional athletes are expected to stop competing professionally.

These make no sense.  So why, therefore, in the context of dating, should a lover who is jealous be permitted to dictate what the object of his or her jealousy should do or refrain from doing?

With compersion, one person loves the other enough to want the other person’s happiness.  Not only are the partners willing to allow their partner to experience pleasure when that pleasure is provided by another, but they, too, receive pleasure knowing that their partner is happy.  This mirrors altruism where one is charitable to another for the pleasure such charity brings to the giver.

If one is insecure, however, and does not trust what they bring to the relationship is unique and incomparable, then the idea of allowing the object of one’s affection to experience pleasure with another is threatening.  The jealous person seeks to confine and restrict the other person to avoid feeling insecure rather than address their own lack of self-esteem or confidence.

Thus, the ability to embrace compersion is recognition of one’s own limitations (we can’t provide all pleasures in the Universe to another) as well as a statement of self-esteem.  The person who embraces compersion has the self-confidence to want those he or she loves to experience ALL pleasures, not just those he or she is capable of providing.  The person who embraces compersion is not threatened by their partner’s pleasure.  Indeed, the person who embraces compersion receives pleasure as well.

Compersion:  give it a try.  Imagine the possibilities.

Reference:

Modern Poly.  (2011, March 26).  Compersion.  Retrieved on November 30, 2013 from: http://modernpoly.com/feeditem/definition-compersion

Communicating Feelings: Love Letter Format

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Communicating Feelings:  Love letter format

Directions:  Each person should complete the following open-ended sentences.  Once completed, the statements should be exchanged.  The purpose is to hear what the other person or persons is communicating and to be heard.  The purpose is not to debate, deny or argue.

Exchange:  Each person takes turns and reads all the statements under a particular heading (Anger & Blame, Hurt & Sadness, etc.)  After the person reads his or her statements, the other person(s) respond by thanking the person.  The next person reads his or her responses to that same category and the other(s) respond “Thank you for sharing.”  When all have provided their answers to one category, the next category is read in this same fashion until the “love letter” is complete.

Anger and blame

I don’t like when…

I get triggered when…

I resent …

I deserve…

Hurt and sadness

I feel hurt when…

I feel sad when…

I am disappointed that…

I need…

Fear and insecurity

I was scared that…

I feel insecure when…

I’m afraid that…

I need…

Guilt and responsibility

I’m sorry that…

I don’t mean to…

I’m taking responsibility for…

I want…

Love and forgiveness

I love when…

I understand that…

Please forgive me for…

All I want is…

The Powers Who Kill

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The Powers Who Kill

© 1996

All rights reserved.

Lethal injection.
Electric Chair.
Government infection.
One last prayer.

The single condemned is no match for the will
of the powers who feel they have the power to kill.

Life is still life but power is blind.
The righteous and vengeful leave no room to be kind
to the soul who is chained for the wrongs of the flesh;
justice is swift when their conscience confess.

Pontius Pilate, crippled by possible riot.
Three nails and a cross will make the crowd quiet.
Barrabus goes free, according to rules
Created by merciless, hypocritical fools.

The power to trade a dream for a door
with bars and cement; the prisoners of war.
Sins of the world; vice of the state.
Legalized lies motivated by hate.

A little brown beetle, not yet full grown
Finds a crack and a shadow, afraid and alone
When the hand of the mighty plays the hand of the judge
And one of God’s creatures is crushed into mud.

Lethal injection.
Electric chair.
Government infection.
One last prayer.
The act is uncivilized, vulgar and primal.
Politicians creating loopholes in the Bible.

The single condemned is certainly no match
For a thrown and a robe, a degree and a badge.
The hour is midnight, the crowd waits until
The powers that be become the powers who kill.

First Impressions

First Impressions

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