Systemic Injustice

We know the factors of failed justice.  Often, they form a syndrome.  No single correction or remedy will address them all.  The cures cannot be legislated.  Like all crime, ultimately it comes down to the individual who makes the choice.  Scandals are rooted in bad society, when injustice is rewarded because of willful corruption or careless disregard for consequences.  That may be easier to fix. 

Tucker Carrington, the director of the Mississippi Innocence Project, says he and his colleague Will McIntosh decided to pursue Mabry's killer themselves after they attempted to bring the case to the attention of the prosecutor in Humphreys County, and then to Hood's office, and received no response from either.

“When you take on a case and it reveals a glaring injustice like this -- something that could easily be taken care of if someone would just give it some attention -- you can't just turn a blind eye to that," Carrington says. "In the end, I guess we saw this through because no one else would.”

“In fact, the way forensics are handled in the courtroom has become a persistent problem across the country, not just in Mississippi. Forensic scandals have been erupting at crime labs nationwide over the last decade. Most recently, there was a scandal at the state drug lab in Massachusetts that could affect thousands of convictions; another drug lab scandal in Nassau County, N.Y., that could also hit thousands of cases; and misconduct at the state crime labs in Connecticut and North Carolina that have led to reviews of hundreds of cases, including murder convictions. Currently, there's an ongoing controversy involving the FBI's crime lab, in which analysts were found to have vastly overstated the significance of hair and fiber analysis while testifying in court. That too has spurred a review of thousands of cases going back more than a decade. The FBI lab had been considered one of the most elite crime labs in the world.”

Solving Kathy Mabry's Murder: Brutal 15-Year-Old Crime Highlights Decades-Long Mississippi Scandal by Radley Balko

Posted: 01/17/2013 1:42 pm EST

Updated: 01/17/2013 9:44 pm EST

http://www.huffingtonpost.com/2013/01/17/kathy-mabry-murder-steven-hayne-michael-west_n_2456970.html

A decade later, more-advanced DNA testing determined that there was semen from two men inside of Jackson, and neither of them was Kennedy Brewer. The state Supreme Court ordered a new trial. Despite the test results, Allgood planned to prosecute Brewer again. When The New York Times asked him why he hadn’t bothered checking the crime scene DNA against the state’s DNA database, Allgood replied that the state doesn’t have such a database. This came as a surprise to the man who had been running it.

“Bad Boys: A rogue’s gallery of misbehaving prosecutors, plus three worth praising” by Radley Balko from the July 2011 issue

http://reason.com/archives/2011/06/27/bad-boys

On LinkedIn

On 01/27/13 4:30 PM, Lettie McSpadden wrote:

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I've written an actual case study that has examples of most of the procedural errors that can be made by law enforcement officials.  It began with the murder of a girl, the arrest and trial of three men two of whom were convicted and sentenced to death.  Later the Illinois Supreme Court overturned the convictions and the prosecution tried the individually two despite the admission of guilt by a third party. During two new trials, convictions, and two subsequent Illinois Supreme Court appeals, the prosecutors refused to admit error even when the third man’s DNA proved his guilt. (Meanwhile he committed two other murders.)  After a preliminary hearing where one policeman’s previous testimony proved erroneous, a new judge ordered the release of the accused.

Unlike other prosecutions full of procedural errors, this one resulted in the investigation, indictment, and trial of three policemen and two prosecutors who were found not guilty. Nevertheless, a new prosecutor ordered an examination of the facts and subsequently indicted and tried the real killer who was found guilty and sentenced to death.  He has not been executed as Illinois has a moratorium on the death penalty.

Meantime the convicted men filed a civil case in federal for wrongful imprisonment, and it was settled by the county where the criminal trials took place for three million dollars.

“Mistakes Were Made:  Prosecutorial Mistakes or Misconduct?

Download on Amazon.com to Kindle  Or Createspace for hard copy.

Lettie McSpadden, Professor of Political Science, Emerita, Northern Illinois University; maclettie@gmail.com

A checklist of factors is all too easy to construct.

ü      Mistaken eyewitness identification

·        At the scene

·        Police Lineups

ü      False confessions

·        Coerced pleas

·        Faux perpetrators

ü      Unreliable informants

·        Street

·        Jail, prison

ü      Prosecutorial misconduct

·        Withholding evidence, especially exculpatory evidence

·        Theorizing the existence of unidentified assailants

ü      Flawed forensic science

·        Laboratory fraud

·        Laboratory misconduct

·        Junk science

·        Pseudo-science

ü      Ineffective legal counsel

·        Physical resources

·        Courtroom community

ü      Prejudices, especially racism

·        Presumption of guilt

ü      Authoritarianism

·        Subjectivity of Policing

Based on Wrongly Convicted:Perspectives on Failed Justice by Saundra D. Westervelt and John A. Humphrey, eds., Rutgers University Press, 2002.

ART & COPY

The Energizer Bunny, the Apple iPod, “Just do it.”, the Me Generation, Perrier, Ronald Reagan, “I Want My MTV.”,Tommy Hilfiger, “Got Milk?”, the Budweiser lizards, Netflix, “I Love New York”… 

Products become icons because of the insightful and compelling work of advertising.  Fifty years ago, advertising agencies were run by and for account executives, men in gray flannel suits.  The artists and writers – the “creatives” – worked behind the scenes, far from the client.  The art director and the writers may not have been even in the same room.  Like much else in the sixties, that changed when bold and aggressive creatives advocated for a new paradigm.  The goal was no longer to tell your customers about the five key features of your product.  Advertising now made your product integral to their self-identification.  That ultimately changed how companies saw themselves. 

Art & Copy (2009), a film by Doug Pray, is available from PBS and iTunes.  I borrowed it from the city library.   

 “Everything that was done to launch that product is now done differently because of that product. […film editing, sound and music editing, all the production tools of print…] Every computer company on the planet does their ads on a Mac.” – Lee Clow, creator of the Macintosh “1984” ad.

  

Mary Wells Lawrence rebranded Braniff Airlines
and became  the first woman to paint a jetliner.
Her autobiography is A Big Life in Advertising.

Hal Riney found Crocker Bank needing to replace its aging clientele.  He hired Paul Williams to write "We've Only Just Begun." The Carpenters took it to the top of the charts. Today, it is a standard at every wedding reception. 

Also on Necessary Facts
The Genius of Design
Objectified
Start the Presses two films about typography
Documentation is Specification

Sergei Magnitsky

Sergei Magnitsky was a lawyer who investigated the agencies of the Russian government that looted the British firm Hermitage Capital Management.  On June 4, 2007, police from the Ministry of the Interior raided the offices, taking all the records and the corporate seal.  They then turned over all the assets to various criminal gangs.  Hermitage hired Sergei Magnitsky from the law firm of Firestone Duncan to investigate.  Magnitsky was arrested and held in prison without charges until he died in 2009, after 359 days, one day short of the legal maximum that you can be held without being charged in Russia.  Now, although dead, Magnitsky is being tried for embezzlement.

Sergei Magnitsky
8 April 1972 - 16 November 2009 

The Magnitsky Affair is why Russia canceled adoptions by Americans.  The Magnitsky Affair is why Russia condemned large lots of US beef as “unfit for sale.”  The Magnitsky Affair is the reason for the U.S. Senate bill called the “Sergei Magnitsky Rule of Law Bill” which was eventually made an amendment to H.R. 6156 normalizing trade with Russia, which President Obama signed into law on December 14, 2012. 

Unlike the Cold War, the present hostility between Russia and the United States is not in the minds of most Americans.  It should be. We knew then that Communism was inhumane. Islamic terrorism has our attention now, but in the past ten years, Russia has changed very little. The fall of the Berlin Wall and the collapse of Communism hardly affected the deeper culture of Russia that made Communism possible there in the first place.  Karl Marx expected the workers in Germany, the United Kingdom, or France (and perhaps America) to rise up first.  But Marx misunderstood history and it was in Russia which hardly knew any democratic institutions or dynamic pluralism that made Communism possible.  Today, the President of Russia is Vladimir Putin.  Born in 1952, he joined the KGB in 1975 at the age of 23 and rose to lieutenant colonel.  In 1991, after the collapse of Communism, he entered politics. In eight years he rose to Prime Minister of Russia (1999-2000 and President (2000-2008).  He held these posts again by manipulating the constitution to rule without interruption today.

Wikipedia biography of Sergei Magnitsky here.

The doctor who refused to treat him in prison was found not guilty of killing him. (The Independent UK here.)

Russia puts dead lawyer Sergei Magnitsky on trial. (Perth Now here.)

Wikipedia summary of the Magnitsky Bill as introduced in 2010.

The Government Printing Office PDF presentation of the law as signed by President Obama here.

Four Books About Bad Science

When Science Goes Wrong: Twelve Tales from the Dark Side of Discovery by Simon LeVay (Plume Penguin, 2008).  LeVay lays out his facts in careful narratives.  In many cases, he interviewed the key actors, albeit some years after the events.  He marshals the pros and cons before stating his final conclusion.  The cases come from a several sciences, including volcanology, criminology, meteorology, microbiology, genetics, and nuclear physics. 

In 1993, geologists attended a conference in Columbia where the Galeras volcano had become active. They visited the calderon, climbing down into the crater. When it erupted, most of them were killed.  Among the survivors was the only scientist actually wearing the protective gear mandated by the National Science Foundation.  Some of the victims were in jeans and sneakers. 

The case from criminal forensics about Josiah Sutton of Houston, Texas, took DNA evidence past the confines of even the Innocence Project.  In this case, the so-called gold standard of physical criminalistics proved to be fool’s gold.  The police lab had committed a series of mistakes, some perhaps accidental and careless, others apparently purposefully fraudulent.  The victim wrongly identified two men as her attackers.  When the DNA samples matched neither man, the prosecutor insisted on their guilt, and posited the existence of a third unidentified attacker.  This is a common ploy with prosecutors who refuse to admit their mistake. 

Embargoed Science by Vincent Kierman (University of Illinois Press, 2006).  Major academic journals such as Nature, Science, the New England Journal of Medicine, and a hundred or so others, have a policy of announcing important publications by sending press releases to major mainstream media on the condition that the reporters not publish until the journal does.  The result is loud bursts of astounding science stories breaking on our awareness ... which then fade … until the next time.  The true costs include the loss of reflection and review, as contradictory findings roll out over the years without in-depth comparison and contrast.  Another cost is the loss of independence both of the news media which will not pursue a story beyond the press release; and also among the scientists who are constrained to divulge only what they publish in peer-reviewed journals. 

Yes, We Have No Neutrons: An Eye-Opening Tour Through the Twists and Turns of Bad Science by A. K. Dewdney (John Wiley & Sons, 1997).  Dewdney took over from Martin Gardner in Scientific American, and this book is a modernization of Gardner’s Fads and Fallacies in the Name of Science.  The stories here about N-rays, intelligence quotients, Freudian psychotherapy, cold fusion, Biosphere 2, and SETI (the Search for Extraterrestrial Intelligence) are exemplar warnings to avoid the known dangers of confirmation bias, arrogance, and ambition. 

Dewdney offers the model of the sorcerer and the apprentice for his narrative analogy.  It is the familiar story from Goethe as delivered by Disney.  We all make mistakes, even sorcerers.  It is when the apprentice presumes beyond his true abilities that disasters unfold.  In these stories, disasters come from scientists who should be sorcerers acting like mere apprentices, forgetful of the full canon of the scientific method, from the creation of testable hypotheses to publication and peer review. 

“Yes, We Have No Neutrons does not address fraudulent science, but mistaken science. The appropriate persona, therefore is not the con artist, but the bumbler: the apprentice if you will.” (Page 2) “What is bad science? To begin with, whatever it means, bad science must be distinguished from fraudulent science.  Apprentices, by definition, honestly believe that they are sorcerers. Fraudulent scientists (and would-be scientists) know that they are cheating when they fudge experiments, steal ideas, or make false claims. They are more like evil magicians than apprentices. …  Bad science happens when someone strays in a fatal way from the scientific method.” (Page 17).

Dewdney takes the reader through three doors to explore the castle of science.  First, he differentiates technology from science.  “Technology consists of objects that have specific purpose. Science consists of methods and results.”  This is important because in the mass media the equipment of science – antennae, computers, reactors, satellites, etc. – stand for science.  Dewdney points out, however, that these are not essentially different from other examples of our material culture such as bicycles, dental floss, lawn mowers, refrigerators, and telephones. 

Indeed, I add here that in the book Biopunk: DIY Scientists Hack the Software of Life by Marcus Wohlsen (reviewed on Necessary Facts here), the author points out for 100 years, scientists from Pasteur to Salk worked without apparatus that we have in our kitchens. The same applies to our garage and basement workshops.  The point is that the mass media presentations of the gizmos and gadgets confuse technology with science, which Dewdney carefully delineates.  Science is a method.

However, Dewdney falls into the analytic-synthetic dichotomy. His second door delineates deductive from inductive science.  He does not unify the two, though, indeed, they must both identify the same reality.  Behind the third door is the getting and testing of ideas.  Scientists observe, ask questions, formulate hypothesis and perform experiments.  The goal of the experiment is to challenge and pass the theory.  This is where most of the fallen sorcerers reveal themselves to be mere apprentices.  Sigmund Freud built his wonderful theories from six case studies and no statistical samples or blind tests. 

Junk Science: How Politicians, Corporations, and Other Hucksters Betray Us by Dan Agin, Ph.D., (Thomas Dunne St. Martin’s Press, 2006) repeats many of the known stories of Piltdown Man, eugenics, phrenology, and Lysenko.  As a working biologist, he also offers cases that are less well known to the general public, such as Emil Abderhalden’s “defense enzymes.”  Agin also writes about the recent cases (1997-2004) of Marion Brach, Friedhelm Herrmann, and Roland Mertelsmann who conspired to publish at least 37 and perhaps 100 papers for which the experiments and data were entirely fabricated.

“There are two prevalent myths concerning scientific fraud.

The first myth states that most scientific experiments are replicated by other laboratories, that science is self-correcting because the discovery of fraud involving the fabrication of data is inevitable.

 The second myth is that scientific papers involving fabrication of data are extremely rare, with only a few fraudulent papers published in any one year." (Page 39)

In fact, given the huge body of published papers, even a small percentage of fraudulent cases – perhaps only 0.04% according to the arithmetic of published cases from the Office of Research Integrity of the U.S. Department of Health and Human Services – means that from the 5,600 significant scientific journals come 400 fraudulent papers each year.  However, by the metrics of criminologist Liqun Cao, (see previous posts on this blog) the number might be closer to 200,000 given that the intentional harms might be small: rounding up or rounding down, dropping inconvenient data, etc.  The median guess might be the most accurate. “In one survey published by American Scientist in 1993, between 6 and 9 percent of scientist respondents said that they were personally aware of results that had been plagiarized or fabricated within their facilities.” (Page 40)

The downside is that Dr. Agin has his own political views which color his diagnosis and remedies.  Corporations can be evil in selling us what we demand – such as junk foods and the fad diets to counter their effects, to say nothing of cigarettes – but the government is only unresponsive when politicians give in to the “wrong” pressure groups, such as Christians who were opposed to embryonic stem cell research.  Agin accepts all of the claims of anthropogenic global warming. He agrees with its fundamental reality. He falls in with the inevitable consequence that governments must do something immediately, no matter how severe. 

Dan Agin’s politics aside, the book is nonetheless an outstanding expose of many instances of bad science, much of it going on right now.

Criminality and Scientific Research:Why Scientists Go Wrong; and Why the Wrong People Become Scientists

“Crime knows no neighborhood” is an axiom of criminology. In other words, every population contains members who stray from folkways, violate norms, harm others, break laws, ignore contracts, and betray trusts.  Occupation, avocation, ethnicity, nationality, language group, religion, philosophy, ideology, age, sex, gender, height, weight, body mass, and shoe size are all irrelevant. 

So, of course, some scientists are criminals.  They falsify data; and they embezzle research funds. They also harass coworkers and subordinates, discriminate on the basis of race, age, religion, and gender. And they cheat on their spouses, beat their dogs, and kick their cats.  But not every scientist who falsifies data abuses their aged parents. In fact, very few do.  The arithmetic of intersecting sets limits the count.  If 20% of scientists publish phony findings and if 20% of researchers carry non-existent students on their payrolls, then only 4% of research scientists do both.

At the same time, criminality is a way of life.  The criminal researcher does not round up the value of a single point on one graph to make the curve smoother.  And the vagary is not the first lapse after 35 years of devotion to truth.  If a complete and nearly omniscient investigation could be conducted, it would most likely show falsified lab reports in ninth grade biology. 

Of course, “most likely” is not “certainly.” When the case of Jan Hendrick Schön was finally resolved, the University of Konstanz revoked his doctorate, even though his dissertation was above reproach. 

Revocation of degree is perhaps the most serious punishment any scientist can face. 

See “Another Case of Fraud in University Research” here.  Even though Dr. Eric Poehlman was sentenced to a year and a day in prison. he kept his degrees.

It seems that in the instance of Jan Hendrick Schön the pressure for results was his motive for crime.  The pressure for results has been cited as a cause of research fraud.  However, it is also true that truck drivers also labor under a call for results and that does not justify crime for them.  Basically, everyone whether in a market economy or a centralized state is called upon to produce.  At the end of a sabbatical, a professor is expected to show more than a sun tan.

Given all of the above, the research enterprise that does not engage independent investigation jeopardizes its funding and its social status.  Which loss would be the worse is hard to say.

Whether all crimes are evenly distributed across all neighborhoods is another question.  It remains an easy assumption that life sciences are more susceptible to deviance than physical sciences.  Tons of public money are thrown at both; but as living entities are more complicated than subatomic particles, experimental results may be harder to quantify rigorously.  Confirmation bias may be a greater danger when we want to believe that we are helping other people live longer and better.  Another explanation is that the US Department of Health and Human Services actually has  an active Office of Research Integrity, while the U.S. Department of Energy has none. 

On 6 April [2011], a federal district judge in Boston, Massachusetts, dismissed a lawsuit that I had filed in 2009 under the US Freedom of Information Act. He concluded that the US government does not have to release a report on an investigation into a case of alleged scientific misconduct at a national laboratory. The ruling was disappointing but liberating: I finally had occasion to write about a case that has shown how the US Department of Energy (DOE) takes a strikingly hands-off approach to the oversight of such investigations.
"Misconduct oversight at the DOE: Investigation closed" by Eugenie Samuel Reich
Nature 475, 20-22 (2011) Published online 6 July 2011 here

University oversight committees focus on human factors. We seek to protect individuals from unintended harm during experiments and surveys in psychology and sociology. But you cannot hurt a chemical or a star.  Short of serendipity, we only find what we seek. 

Previously on Necessary Facts

Twenty Percent of Scientists are Crooks

Misconduct in Research and Science

Another Case of Fraud in University Reseach

Who Guards the Guardians?