Death Juries

It is a peculiarity of the American justice system that the prosecution is allowed to exclude jurors who say they would never vote for the death penalty.  [2022-04-12:  I discovered recently that not all judges agree with this and in some cases have allowed jurors who do not subscribe to murder as a remedy.]

On what basis is this done? We are given to understand that it would be unfair for the prosecution to have to convince someone who didn’t believe in the death penalty to vote for the death penalty? But why is that unfair? A suspect is entitled to a jury of his peers. If, say, 30 or 40% of the general population is opposed to the death penalty, why is that view excluded from the jury?

I am very confident that a simple study would show that death penalty enthusiasts would also be more likely to vote guilty just because they are sure than any person accused of any crime probably committed the crime. So doesn’t this process actually stack the jury?

Well, because then we would never get the death penalty, because there would always be one or two jurors who would not vote for it. And that is wrong because…? Because the people in favor of the death penalty demand the right to prevail! It’s not fair that people who disagree with me get to have even one member of the jury who doesn’t share my desire to kill someone.

Turns out the courts have considered exactly that point. And responded with a somewhat bizarre ruling:

“In Lockhart v. McCree, the results of the empirical research on the effects of death-qualification came before the Supreme Court. The court held that the process of death-qualification does not unconstitutionally bias juries towards a verdict of guilt. Justice Rehnquist criticized the research, but ultimately the Court held that general empirical research could not decide the issue; instead, a defendant would have to demonstrate that his or her own jury was biased.” So proof would consist of being found innocent.

Nicely parried Rehnquist! Scatalogical reasoning worthy of a Scalia, along the lines of: you have to prove that your specific all-white jury was biased against you, not just that the principle of excluding all blacks from juries is unconstitutional. Therefore, you Alabama prosecutors just go right ahead and continue to empanel whites only juries!

If you think that sounds like another 5-4 ruling along partisan political lines, you’re correct. Did anyone, while arguments were presented, ask Clarence Thomas why he was allowed on the Supreme Court? After all, no one would ever be able to show that a perpetually white Supreme Court was ever biased in any particular decision.

The smell around the issue has become a bit more pungent with the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing.

The latest poll shows that less than 20% of Massachusetts citizens believe Tsarnaev should be executed. In a country that positively adores punishing people and killing them when given the opportunity to excuse their wish to kill people, that number is astonishing: less than 20% of the population of Massachusetts are barbarians.

So why are they even talking about the death penalty? Because certain government officials in Massachusetts, in the State Attorney’s office, decided that they needed to transfer the case to the Federal Government precisely so that Tsarnaev could be executed, in spite of the fact that Massachusetts does not have the death penalty.

And… is that not possible grounds for a future appeal?

If they are going to have the death penalty, it should absolutely be public. If the public can’t stand watching, then vote to abolish it. Nobody should be allowed to support the death penalty and then go cower in a little box in the corner of the basement and pretend not to know that someone, on their behalf, is going to murder someone else, in the coldest blood possible, because this is an execution, not a bar fight. It is pure cold blood. The executioner should never wear a mask: what do you have to be ashamed of? What is it? Why don’t you want us to know that you are willing to kill people, as long as it’s dressed up with symbolism and ceremony and piety.

My position on the death penalty can be simply summed up thusly: the logic of “we think the taking of a human life is so terrible, so shocking, so monstrous, that we will take a human life in retribution” is patently absurd.

“…spoke from his cloak/ so deep and distinguished’ Bob Dylan


* * *

Some questions they ask potential jurors:

  • I am strongly in favor of the death penalty, and would have a difficult time voting against it, regardless of the facts of the case. (true or false)
  • I generally favor the death penalty, but I would base a decision to impose it on the facts and the law in the case. (true or false)
  • I am generally opposed to the death penalty, but I believe I can put aside my feelings against the death penalty and impose it if it is called for by the facts and law in the case. (true or false)

The last one is bizarre:  Okay. So I could put away my “feelings” against the death penalty and impose it if “it is called for by the facts and the law in this case”. I thought that the whole point of the abolitionist’s position is that the death penalty is never rightly called for by any facts or law? 

Lies, Damned Lies, and Statistics

I have heard this figure quoted numerous times in the past six months, usually in connection with another suspected campus rape: according to psychologist David Lisak’s 2010 study, only 2% to 10% of sexual-assault reports are false.

I didn’t dig into it at the time I first heard it– I just assumed that it belonged in the category of “30% of women in the military report being sexually assaulted”, which is based on a definition of sexual assault that includes inappropriate comments and “leering” behavior or standing too close.

In any case, the Wall Street Journal dug into it a little more deeply and reports that Lizak’s statistic is based on the assumption that all reports of sexual assault that are not categorically proven to be false are therefore true.

Think about it. There is a percentage of cases which are clearly proven to be true, as when there are witnesses and physical evidence or a confession. There is a percentage which are definitively proven to be false, as in the now notorious case at the University of Virginia reported in Rolling Stone Magazine by Sabrina Erdely in an article which has since been retracted and discredited. And then there are all the cases for which there is no proof either way. Mr. Lizak seems to assume that proof is only required to demonstrate that an allegation is false. Otherwise, it is assumed to be true.

One of the lame arguments presented in defense of Sabrina Erdely’s work for Rolling Stone was the usual “re-victimization” trope: that the idea of actually needing to confirm a victim’s story is itself a form of “re-victimization”.

Incidentally, you may have been left with the impression– as I was, for a time– that the victim in the University of Virginia case, “Jackie”, might have really been a victim, but of somebody else, somewhere else, on a different day. She was traumatized and confused so she conflated different fragments of experience into the one damning narrative and accused the wrong person.

Okay– that sounds a bit absurd now, but I was trying to be fair. The trouble is that Jackie actually went though some effort to deceive her friends about the issue: she actually made up a fake former boyfriend (whom she claimed set up and encouraged the gang rape) using the picture of a former classmate and created an anonymous SMS account from which “he” sent texts to her friends. She wrote fake love letters to the fake former boyfriend that she showed to her friends, which appear to have been copied from “Dawson’s Creek” episodes.

Lizak assumes that all of the other cases, which have not been proven either way, are actual sexual assaults. This is a scurrilous assumption.

According to the Wall Street Journal, some earlier studies have placed the percentage of false reports at 40-50%. You might say that those are just some studies. So is Lizak’s.

You might also say– as I have heard frequently– that women just “don’t make those things up”. I don’t know why anyone would believe that, given the overwhelming evidence that, in fact, women do sometimes make it up, as in the two thirteen-year-olds who destroyed their Grade 8 teacher’s life successfully even though it was later shown that they were lying. (Among other things, they claimed it happened in a room that had not been built at the time they said it happened. They later confessed they had made it up.)

By that time, the teacher’s career and marriage had been destroyed.  And it must be noted that even when the accusations are proven to be false, people still tend to believe them.

If you like think that we live in a world in which school boards and ex-spouses then say, “oh, I’m sorry. I’ll make it up to you”, you are delusional.

The two girls? They were not punished. We don’t punish people for the real harm that they do (or half of the Wall Street brokers would be in prison) but on the basis of what is required politically. That is why the Wall Street Journal is more sympathetic to the victims of false accusations than the New York Times. The Wall Street Journal is more conservative. It’s an issue I think they might be right about.

Why did those two thirteen-year-old girls make it up? It’s not congenial to anybody, it seems, to inquire into that.

Some people cite the number of women claiming to have been drugged and raped by Bill Cosby as proof that he’s guilty. On the other hand, the similarity of the stories might also suggest that the alleged victims are cribbing from each other.

I am skeptical of the “drugged” angle: there is a widespread belief out there that there are drugs– Rhoponal and GHB– that turn women into compliant zombies who will forget that they were raped. The reality is that these drugs are no more or less effective than alcohol at achieving the results claimed. Read their stories: the use of these drugs is almost always within the context of the victim drinking a lot. Some studies suggest that the symptoms the women describe, of having been drugged, are more indicative of a simple hangover.

I have no problem believing that vulnerable and impressionable young women, believing that Bill Cosby could give them a big break, an acting role in his tv series or movies, or whatever, might end up willingly going to his apartment or hotel room and drinking with him and drinking too much and perhaps even (willingly) ingesting some of drugs he offered them. Perhaps he forced himself on them.

Perhaps they were willing and then disappointed that he didn’t promote their careers as they hoped he would.

You want real political correctness?  Try discussing that angle with anybody.


Let’s stay balanced:

In More Detail, a Review of Jon Krakauer’s book “Missoula”.

John Kasich

[2019-03: I retain this post as a monument to my own over-confidence in my views of the 2016 election.  I will note that I had assumed Bill Clinton would campaign prominently for Hilary; he did not (he wasn’t wanted).  And no one, of course, knew what James Comey would do.]

Remember that Bill Clinton was really America’s first black president. And he will be campaigning for Hillary. And I doubt that even the Republicans would dare to make him a target after their last attempt clearly backfired. Bill Clinton currently sits at a 75% approval rating. That is really quite extraordinary.

Oh…. they probably will.

Oddly, one of the better possible Republican candidates is none of the above– not any of the most prominent, caustic initiates. It’s Ohio Governor John Kasich, former managing director of– get this– Lehman Brothers (until the collapse in in2008).

Kasich voted for the 1994 Assault Rifle Ban.

Kasich was chairman of the House Budget Committee in 1993 and helped the Clinton Administration create the first and only budget surplus in 50 years.

He’s a bit of Scott Walker: he tried to pass a restrictive collective bargaining law but Ohio voters resoundingly defeated the proposal.

In 2011, he produced a balanced budget, without chicanery.

He signed on to the expansion of Medicare benefits under Obamacare. He ordered rape crisis centers to lie to women about the option of abortion. Let’s not be politically correct about describing this: he ordered them to lie.

He is also a raging hypocrite on “pro-life” issues: he had eight people executed.

But here’s the thing: the Tea Party, which had initially supported him, repudiated him in 2014 and tried to run someone against him in the primaries. Why, for heaven’s sake? After all, God told Kasich to run. Well, he raised some taxes, including a sales tax, in order to balance the budget. I don’t know what the Tea Party is upset about: increasing the sales tax while cutting income taxes has the net result of shifting more of the tax burden onto the poor. Why, that’s the cornerstone of Republican economic policy.

No greater compliment hath any Republican than repudiation by the Tea Party.

I have no idea of how many people he wants to die in the Middle East so the U.S. can look like it has some authority in the region. Perhaps he doesn’t really have a sophisticated understanding of international issues– but he has more gravitas than Scott Walker or Marco Rubio.

Anyway, Kasich has virtually no chance: he raised taxes. Republicans get absolutely, idiotically, insanely hysterical about anyone ever raising taxes by even the slightest amount.


When will voters get tired of the standard Republican Strategy?

  • Vow to cut taxes during the campaign.
  • Win the election.
  • Cut taxes on the rich without cutting spending on any programs (because that will make some tax-payers realize that worthwhile government programs actually cost money).
  • Run up the deficit (like Reagan and Bush Jr.).
  • Blame the deficit on Democratic spending policies and campaign against deficits.

And here’s where the magic comes in. The solution is not to cut programs (because some voters like Social Security, Education, and Medicare, for example) but– wait for it– to cut taxes even more. Because, in the fantasy world of Republican economic models, the tax cuts will generate a fabulous outbreak of economic growth, which will increase tax revenues and balance the budget.  Without any pain or sacrifice!

I’m pretty sure most Republicans don’t really believe this, but they are more than happy to have Bill Clinton or someone like him come along and balance the budget again eventually so they can run against taxes again, cut taxes for the rich again, and leave the deficits to the Democrats to clean up.


Real Character

David Brooks, columnist for the New York Times, has written a book about character. He essentially defines character as a strong connection to something outside of yourself. He means “character” in a positive sense– not in the sense of “what a character!”. And not in the sense of “he is a deeply flawed character”. He means, “this man has character”. He has principles. He has strength and conviction. His life means something.

It really is an odd criteria, but it plays well with conservative tropes about duty and respect for authority and service. It honors soldiers who come back from war, having done their “duty”, and having killed for the state, or the state’s vested interests, without ever questioning the justice or rationality of its cause. It plays well with religion: character is obedience, to that something outside of yourself, God, or the church itself.

And so, among the failures of Bill Clinton, we often hear conservatives insist that his was a failure of “character”. He was dishonest as a politician. He cheated on his wife.

He was such a character!

But what if character is the opposite? What if it is precisely the man who refuses to obey authority unquestioningly, because he doesn’t have that connection with that outside thing that he thinks is smarter or more respectable or more honorable than his own conscience? What if a man with character is more like Thomas More, not because he believed in something outside of himself– the Roman Catholic Church and it’s corrupt hierarchy– but that he might be right and everyone else, who had all sworn allegiance to King Henry VIII as the new head of the church, was wrong?

Brooks’ mistake is that he assumes that the thing “outside of oneself” is transcendent.  It isn’t potentially just as flawed as the values of a person who, in his view, isn’t loyal to those principles “outside” of his own needs and wants.  But it is obvious that the values that exist “outside” of yourself are someone else’s values: patriotism, religious belief, prurience.  Brooks wants you to believe that those values aren’t the product of some other person’s wants and needs– like a king or corporate executive or general.

That’s why it’s a pity to see Rand Paul trying to go mainstream. I thought he had character, with his odd positions on the drug laws, the invasion of Iraq, and tax breaks for corporations.

10 (or more) “Perfect” Films

Of course there are no perfect films. But there are films that are excellent on a number of levels with one additional virtue which I use to qualify them as “perfect”: that is, in addition to all the other elements of a great film, they possess an incandescent feeling of balance and equanimity, as if all the pieces fit together just perfectly, and no single element is displaced or diminished by the dominance of another element.

A better film might have one or two deeply flawed scenes in them, but a perfect film does not have a single false or dishonest moment.  Well, maybe one or two, but they are more than counter-balanced by several exquisite moments.

10 Perfect Films

  • The Apartment
  • City Lights
  • The Third Man
  • Dr. Strangelove or How I Learned to Stop Worrying and Love the Bomb
  • The Seventh Seal
  • Topsy Turvey
  • The Godfather
  • Junebug
  • Late Spring
  • Ran
  • Do the Right Thing
  • The General
  • Rashomon
  • Manhattan

Honorable Mentions

  • The White Ribbon
  • Blade Runner (The original)
  • Crimes and Misdemeanors
  • The Great Beauty

The Most Subversive Film Ever Made

  • Monsieur Verdoux

Crackpot Justice: the FBI Lies

Just what kind of crackpot justice system is this?

It is now reported in the Washington Post that the celebrated FBI laboratory has acknowledged– not “discovered”– acknowledged– that the evidence it has given in respect of matching hairs– usually those found on the victim to those of the suspect– was not based on real science.

Not only will many court cases (at least 268) have to be reviewed carefully, but a lot of Hollywood movies and TV Dramas might want to revisit their plot points.

What is striking is that the faulty evidence given by the FBI almost always favored the prosecution– up to 95%, according to the National Association of Criminal Defense Lawyers and the Innocence Project.

Thirty-two of the defendants had been sentenced to death.

Can’t wait to see that dramatized in the TV series.