Archive for the ‘Law’ category

Science and the Law: Why Antonin Scalia is not just wrong, but incapable

August 19, 2009

Update: I’ve corrected the number of dissenters in this case from 3 to two,  Scalia and Thomas, per Jason’s comment; Justice Sotomayor, newly arrived at the court, did not take part in this case.

Upfront:  I’m not a lawyer, nor a regular student of legal matters, Supreme Court jurisprudence or Constitutional scholarship.

But such inconvenient facts should never stop a doughty blogger, so here goes.

Lee Kovarsky, a law professor at NYU, has a very smart guest post up at Obsidian Wings on the meaning of Justice Scalia’s dissent in the Troy Davis decision.  In that decision a 6-23 majority of the Court sent Davis’s murder conviction back to Federal District Court to determine whether new evidence confirms Davis’s actual innocence.  This outcome was genuinely new, the first time in 80 years that the Supremes have granted an original habeas petition, and the decision to pursue this particular line of court authority is itself entangled in Constitutional issues that Kovarsky touches on.

But I’m not here to talk about such legal issues — remember, I don’t know anything about them.  Go read the link as a starting point into the pure law side of the matter if you are interested.

What caught my eye within Kovarsky’s gloss of and response to Scalia’s argument were at least a couple of levels on which science and law intersect in the controversy that Scalia’s claims have evoked.

In brief as Kovarsky tells it, Scalia follows the line of argument laid down by Professor Paul Bator who held that knowing “truth” is in essence impossible, at least within a legal context.  Rather, the best one can ask of a judicial system is that a determination of guilt or innocence emerge from a recognizably consistent procedure.

That is not, as Kovarsky writes, a crazy position.  It even has an echo of sciencey-ness.  (What is blogging for if not to attempt stillborn neologisms?)

Think of the popular plain-language version of  the interpretation of quantum mechanics that holds that what it is possible to know about a quantum system is not the behavior of the system itself.  Rather, you know the what your instruments tell you.  We can state the measurement to the limit of precision of a given experimental apparatus, but not the “real” nature of a wave/particle or whatever.*

But it is, as Kovarsky goes on to argue, an untenable one in light of the impact of modern science on criminal law.  He cites specifically the impact of DNA evidence, though he notes that this is not the only technique that bears on determinations of guilt or innocence, and that it does not in fact apply in the Davis case.

His point, and it’s correct IMHO, is that it is no longer tenable to say that given the imperfection of human knowledge it is impossible for one court to come to a reliable determination of actual innocence, the “he-didn’t-do-it-for-sure” level of knowledge needed for a federal court to overturn a state court determination of fact (as long as there were no fatal defects in procedure).

Turn that convoluted sentence around:  Kovarsky says that Scalia and Bator behind him fail to recognize that we now have ways of really knowing certain kinds of facts.  Scientific advances allow us to state with great (not perfect, but great) authority that, e.g.,  if the relevant  DNA at the scene does not belong to John Doe, then John did not commit that particular crime.

Given the existence of scientific procedures of such relevance to criminal justice, then the old view that human knowledge is so inevitably imperfect as to restrict the concern of appelate courts to procedure rather than matters of fact cannot be accepted.

The tricky part in the argument, at least from where I sit, is the ceding to scientific methods this level of authority.  I don’t disagree — but the claim leads to the second level at which science intertwines with this case.

There is an argument within science — or at least, if not among scientists so much as within the broad area of science studies– about the quality of different kinds of scientific knowledge.

Within science studies there have been the radical views of the contingency of scientific knowledge, of course, which seem to me to be basically a red herring.**  There have been a lot of much more persuasive (to me) work done on the impact of the sociology of scientific life and the economics or political economy of scientific research that do show how the making of scientific understanding is a human activity, prey to all the ills that may attach to our endeavors.  And finally, scientists themselves are deeply aware of the issue of interpreting measurements.  The question of what it is that a given procedure actually tells you is one that comes up in every single experiment.

The point for the court is that for all the sources of uncertainty in science that scientists themselves talk about and guard against in individual experiments and observations, there are, as Kovarsky points out, things you actually know to a satisfactory level of “truth.”  And the use of DNA and other biochemical markers as exculpatory (or incriminating) evidence is one of them.

So, to buy Kovarsky’s argument, as I do, you need to buy the fact that when a scientific procedure returns a result, that result has meaning, one that is determined by a specific context of procedure and, in a sense, community standards of proper scientific process.

And one thing that interests me is that this is not part of the legal culture of knowing.  In an advocacy based system, the quality of your facts is determined by the quality of the argument you can build to defend or destroy claims of “truth.”  That’s a model followed in a lot of pseudo-scientific debates — see the strategies of argument advanced by ID/Creationist types (among whom I don’t think it accidental that one founding inspiration, Paul Johnson, was himself a lawyer), and those offered by climate change deniers.  But its not the core of scientific argument, which has much more of  “did you do it right” quality rather than “you have conceived of this procedure wrongly.”  (Much more, I say, not “exclusively.”)

To wrap up:  one of the trickiest things for a court has to be accomodating itself to real changes in human experience.  Scalia’s position was always, I think, wrong in justice terms.  It hasn’t taken DNA evidence to produce instances of people genuinely wrongly, and as Kovarsky also notes, there is no doubt that on the subsidiary question (perhaps primary to lawyers), state courts are not always reliable repositories of proper procedure.  Deference to the actual flawed courts on the ground is granted on the basis of an image of the ideal courts of law school textbooks — but in practice one of the central premises of the Bator/Scalia position is false as a matter of empirical observation.  In sum:  it is a poor excuse for a judicial system if as a matter of formal principle there is no possible judicial way for a condemned prisoner to establish actual innocence.

But whether or not you agree with that view, it is observably true that human skill at learning facts and patterns of facts about the world has changed enormously over the last four centuries, and at an extraordinarily rapid pace in the last several decades.  That transformation makes Scalia’s position wrong in essential terms as well — we can know things that his view asserts we cannot.  That  is an error that I believe his age, his education and his experience will make it vanishingly difficult for him to correct within himself.

And that leads to the twin editorial points of this story:  scientific advance is not the only but it is a big reason why the premises of Constitutional originalism are shaky to the core.  And Justice Scalia is a man past his time.

*Leave aside here the question of whether any such plain-language descriptions of the “meaning” of quantum mechanics help very much.  I like them, and they help me think about some matters, but I’m sympathetic to a kind of schizophrenic view that we know the quantum world operationally, through experiences that include typing this on a device riddled with quantum physics, and mathematically, in a symbolic language that translates only imperfectly into the kind of statements like the one above.  But here we enter an endless loop of late night dormitory discussions, in which this deponent falls silent.

**I think that studies of, for example, the contingency of class and knowledge do help in historical interpretation — no one, I think, doubts that it is valuable to understand Charles Darwin’s positioning in English and British society in grasping what he did and did not accomplish.  But Darwin’s status as a member of a family clearly lodged within the industrial gentry does not alter the fact that his finches provide a powerful case study of evolution by natural selection in action.  Again, a much longer discussion starts here, and here I get off, at least for now.

Image:  William Hogarth, 1758.

John McCain’s reality problem: Guantanamo, State Power, and Theoretical Physics

June 17, 2008

You have to be quick to be good. Today, via Atrios, George Will (George Will!) is actually saying the right thing about John McCain’s latest, almost tragic, self negation.

The back story: The Supreme Court rules 5-4 that prisoners held by the US, on territory the US wholly controls, actually have some baseline of essential rights, in particular the right to make a habeas corpus claim, requesting a hearing (requesting! not automatically receiving) in which the government must demonstrate that it has due cause to hold the complainant, or else release him or her.

So what happened next? Joy amongst those who think the Constitution has some life in it yet, visions of the apocalypse for those who feel the rule of law is for other people.

John McCain, sadly — and I mean that — lined up with the latter, declaring the ruling “one of the worst decisions in the history of this country.”

It is sad: I’m no John McCain fan (dog-bites-man…ed.), but he is someone who once seemed to have a sense of who he was, and now he doesn’t. On everything from torture (agin it, except when the proper Americans do it) to energy polict, (even Cheney thinks he’s gone wacky) he now seems willing to say whatever he thinks at that moment might help him out. It’s never a pretty sight to see someone turning themselves into a caricature in public.

But here McCain is worse than sad: he’s dangerous on two levels. The first is obvious, and it is the one Will nailed — with exactly the same serious of examples I was planning to provide. As he writes,

Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?

No; of course not. As Will points out, there are in fact some issues to argue here — but there is no way to say that this decision defies reason or legal basis.

Will goes on to have some fun with McCain — there’s a tone of real contempt in lines like “Did McCain’s extravagant condemnation of the court’s habeas ruling result from his reading the 126 pages of opinions and dissents?”

While I can enjoy such snark (and from such a source!) the real point of Will’s column, and the one that moves the whole incident into the realm of a blog concerned with what science can offer public life is the real risk of a McCain presidency exposed here. And it is not just that he’s revealed (once again) as a shoot from the hip reactive kind of guy (contrast his approach to this legal decision with former law professor Obama’s preparation here). Rather, it is that there is a real problem in electing Humpty Dumpty to any responsible office.

That is: the one constant across all the disciplines that call themselves science is a commitment to reality, to acknowledging the actual data that observation and experiment produce, however much they may conflict with worldview or desire. Here’s Albert Einstein, acknowledging in public, for as broad a lay audience as he could reach, explaining the significance of of the new discoveries of quantum mechanics:

There is no doubt that quantum physics explained a very rich variety of facts, achieving, for the most part, splendid agreement between theory and observation. The new quantum physics removes us still further from the old mechanical view, and a retreat to the former position seems, more than ever, unlikely….The qunatum theory again created new and essential features of our reality…”

Einstein never reconciled himself to critical aspects of the modern quantum theory; he spent three decades looking for a more general theory that would subsume it; and yet he nominated its first architects, Heisenberg and Schroedinger for the Nobel Prize, and he did not deny its obvious power or importance. He hated it, but he knew it meant something very, very significant.

Contrast that with McCain in action here. It is a fact that this decision falls within the mainstream of American jurisprudence — one may not like the outcome, and there are meaningful arguments to support that dislike, but this is a perfectly conventional bit of Constitutional reasoning. To say that this is “one of the worst” Supreme Court actions is simply to ignore example after example, fact after fact, that gives the lie to McCain’s pique.

This post is long enough. I’d just say that we’ve had enough of people asserting facts not in evidence for their own, temporary advantage. If there were a ever a single disqualifying attribute in a potential President, it is this truly anti-science willingness to ignore what they do, or should, know to be essential features of the reality we inhabit.

Image:  Jade Record, Chinese, 19th Century.  Depiction of sinners being tortured in the sixth court of hell.  Source: Wikimedia Commons.

Lt. Whiteside, Brain, Mind and PTSD: Update

January 6, 2008

(The image comes from Goya’s Napoleonic War-inspired series of eighty two prints titled Los Desastres de la Guerra The Disasters of War. The rest of the series is worse.)

I’ve been remiss in not following up this post. The Washington Post reported last month that the Army examining officer reviewing Lt. Elizabeth Whiteside’s case recommended leniancy — no court martial, and discharge with full access to benefits, including the care she will require for PTSD.

As Dana Priest and Anne Hull reported in a very powerful piece in the Post, Lt. Whiteside was under threat of courtmartial for an incident in the hospital in Iraq where Saddam Hussein, among others, had been held. She had a breakdown, pointed her gun at a psychiatric nurse before turning her weapon on herself and attempting suicide.

Initially, Army prosecutors pressed for a court martial and warned Lt. Whiteside’s lawyers not to try a “psychobabble” defence. This is thus good news an a bunch of levels, most important for the apparent recognition that combat-induced stress produces real injuries, even if they are harder to perceive than a bullet hole.

No word yet on the final disposition of the case — the recommendation still has to go through Maj. Gen. Richard J. Rowe Jr., commander of the US Army Military District of Washington. He can accept, reject, or modify the decision. But the langauge of the recommendation is pretty strong and I very much hope that this is the way the matter rests.

One last note — in my first post on this, I gave some grief to Philip Carter, author of the excellent blog Intel-Dump. He posted the update on the case in a much more timely manner than I have. In his initial post on the subject, he seemed to see this case as a much more ambiguous one than I did. In his follow-up he writes, “I agree with this decision. Lt. Whiteside should not be entrusted with the burden of battle command again. But she should also not be punished for suffering the psychological wounds of combat, nor denied the treatment she needs now that she’s home.”

Carter got the point, in other words: among the psychological consequences of combat are traumas that should be seen as wounds. When they are, they need to be recognized and treated appropriately.

Image: Francisco de Goya from Los Desastres de la Guerra, 1810-1820. Source: Wikipedia Commons