11 August 2010

A Round Tuit (41)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Bert and Ernie

In 2008, when California voters approved Proposition 8, designated the "California Marriage Protection Act", opponents of the measure immediately challenged the amendment to the state constitution in both state and Federal courts. In last year's majority decision in Strauss v. Horton, the California Supreme Court found that Proposition 8 was valid under the state constitution and created "a limited exception to the state equal protection clause".

In the consolidated Federal case, Perry v. Schwarzenegger, decided by Chief Judge Vaughn Walker of the District of Northern California this past Wednesday, Proposition 8 was determined to be unconstitutional under both the Due Process and Equal Protection clauses of the United States Constitution. The best (and most frequently updated) coverage of the decision itself and early reactions to it was provided by David Lat and his merry band at Above the Law. An ongoing reader poll at the site showed reaction to the decision to be overwhelmingly (nearly eighty percent) in favor of the result (which the blog has since posted as a wonderfully hyperlink-enriched .pdf).

Lat's co-blogger, Elie Mystal, was one of those who cheered the decision, tweeting that he was "so excited about the Prop 8 decision I had to remind myself that I'm not gay." He nonethless wondered whether same-sex couples fully-appreciate what they're in for and what chaos their Perry victory could cause in their relationships:
So gay people in California may soon be able to engage in the lovely “sh** or get off the pot” conversation that dominates the life of every guy who has been dating the same girl for more than a couple of years. Yay, congratulations!

But are gays and lesbians really sure they want marriage equality? After the cake, the reception, and the honeymoon, there are a bunch of… obligations that attach to marriage. Just look at New York. We don’t even have gay marriage here, and yet same-sex partners will find themselves on the hook for all sorts of things…


Oh, I kid, gays and lesbians. Marriage is really wonderful. Really. You all are going to love it. What other institution allows you to have less sex, more responsibilities, and the opportunity to lose half your stuff if you make an honest mistake?
Perry is, of course, far from over; Ashby Jones mapped-out the next steps the parties will take. For the many who have speculated that the victorious plaintiffs would have an easy time on appeal at the liberal Ninth Circuit, Jones sounded a note of caution — "the initial appeal will likely be heard first by a three-judge panel. And as several legal experts told us, there’s a decent chance conservatives could outweigh liberals on that panel, which are chosen randomly." Concerning the Due Process and Equal Protection issues which will be tested in the appeal, Jones wrote:
Judge Walker ruled that the “fundamental right” in the case was the right to marry — and that it had been denied the plaintiffs. It’s important to note that Walker didn’t say the right was to marry someone of a specific sex, which might not be defined as a “fundamental right,” rather the right to marry generally.


[USC Law Professor David] Cruz said that the Ninth Circuit could see this point differently, and find that the plaintiffs had been deprived not a fundamental right to marry but a right to marry someone of the same sex. Such a right would not be “fundamental” and therefore would presumably garner less court protection.


“The Supreme Court has not been unsympathetic to gay rights,” [Chapman Law professor Ronald Rotunda] said. “But it hasn’t ever told us what the test is. So reasonable judges can go either way.” Added Rotunda: “If this case gets to the Supreme Court, the justices will finally tell us.”
Mike Sacks was one who suggested that Walker's carefully- and extensively-reasoned opinion was calculated to appeal to Justice Anthony Kennedy particularly, anticipating that Kennedy will tip the balance should Perry make its way to the highest court:
A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal. Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court. As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges. For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.


We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey. But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.
Dahlia Lithwick agreed, noting that the opinion sought to leverage Kennedy's previous opinions to influence his position in this matter:
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights....


It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.
At the Popehat blog, Ken offered a good early take on the Perry opinion:
As is often the case, the fight is won on definitions. There’s no dispute that marriage is a fundamental right. Judge Walker correctly states that the issue is what “marriage” means — does it mean “a bundle of rights held by a man and a woman wishing to join in matrimony,” or does it mean “a bundle of rights held by two people wishing to join in matrimony.” He answers that it is the latter. This is a situation where my ability to critique is clouded by my liking the result, a hazard of all legal commentators.


[Judge Walker] finds that there is no rational basis for the distinction. Once again, it is difficult to fit my lawyer hat and human being hat upon my head at the same time. I find the reasons offered for Prop 8 sub-rational (particularly as they were rather lamely offered in this case). That said, I have read a hell of a lot of rational basis cases, and this rational basis review is much more muscular and much less forgiving than 99% of them. (For the record, I’d be happy for all laws — including economic regulations — to be subjected to such actual scrutiny.)
Gideon summed-up the decision well, writing that Perry reaffirms that "fundamental rights cannot be submitted to a vote":
The court finds not only that the California Constitution violates the Equal Protection Clause of the United States Constitution, but also the Due Process Clause. The court, essentially, answers my question from a few years ago: can the constitution be unconstitutional? Yes, it can. Rejecting anti-gay-marriagers attempts to redefine the question, the court nicely puts the real issue at focus with this paragraph:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Viewed in light of that question – do gays and lesbians have the right to marry? – Prop 8 is analyzed as an infringement of a fundamental right and thus invokes strict scrutiny for a Due Process analysis. To overcome strict scrutiny, there needs to be a compelling governmental interest. An effort to show such an interest in same-sex marriage cases has always been doomed from the start, for there is none. Particularly telling, in this case, is that the State of California chose not to defend Prop 8. If the Government does not wish to articulate that compelling governmental interest, it can mean only one thing: one does not exist.
Scott Greenfield also read the decision as one which rejected the prospect of tyranny by the majority:
Whether this decision is viewed as utterly obvious or the death knoll of proper society, and I fall into the former camp, there are others far more knowledgeable about constitutional law to offer critical perspective. My interest is limited to one line in Judge Walker's opinion.
That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).
In a nation guided by platitudes, love of democracy often clouds our appreciation of constitutional limits. There are some minimum bars to the will of the majority. This is intended to prevent the Tyranny of the Majority. The idea is counter-intuitive to many, for if the majority of Americans (or Californians in this case) decide that they want something, then that something is what they should get. That's democracy. That's America. That's the will of the People!

Not always. The Constitution provides a floor below which no one who calls themselves an American can go. It's far from being an overarching set of regulations that prescribe our daily lives, yet states a bunch of overarching rights that can't be violated if one wishes to be an American. The rights to Equal Protection and Due Process are amongst them. So are the right to remain silent and be secure in your papers and effects. Some are protected with greater zeal than others.

What the majority of people cannot do is decide to take away those rights for the minority.


Whether it's the will of the majority of California voters, whether they are absolutely right that homosexuality is the most venal thing to ever strike at the heart of the sacred institution of marriage, doesn't matter. No matter how strongly, how sincerely you believe that this is the most horrible thing to ever happen to fine, God-fearing men and women, who to shoot out kiddies to repopulate the church pews, it doesn't matter. The majority cannot proscribe the rights of the minority, whether it's a minority of 49.9% or .0009%. The majority cannot be tyrants.
Norm Pattis considered the weak case presented by proponents of Proposition 8 at trial and concluded that the Perry result was the only one which could result from that record, but he predicted that those who backed the Proposition will continue to see things otherwise:
It was really no surprise that Judge Vaughn ruled as he did. The record developed during trial can support no other conclusion. The right to marry is a fundamental right, our courts have long held. The state can limit it only out of compelling necessity. No such necessity was demonstrated at trial.


My how the right will fume. This is judge-made law in defiance of the people, they will say. To the states belongs the power to govern health, education and welfare. This is spiritual abortion, they will eventually say. It's Halloween, I tell you. Everyman is now Jeremiah.

Whether this ruling stands on review is an open question. We will see ever more clearly that law is politics writ obscure. But for today what pleasure to see hope on the faces of those long scorned. It is almost safe to be different today. Almost, I say. Hatred never dies without a fight.
However weak the Perry defendants' case, a number of legal bloggers suggested that the "maximalist" nature of Judge Walker's ruling might turn this battle won into a war lost for same-sex couples. Dale Carpenter wrote:
[M]y concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM [same-sex marriage] version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.


Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights.


The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.


Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).
Bruce Boyden has written before about the prospective use of the Privileges or Immunities Clause as a "tie-breaker" for highly-contentious and deeply-divisive issues. Here, though, he suggested that Walker's Perry decision may have escalated the same-sex marriage fight prematurely and that the SCOTUS, presented with an all-or-nothing choice, will choose "nothing" and set-back a developing popular movement:
Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.


I argue... that the Privileges or Immunities Clause should only be invoked... in situations that somewhat mirror the antebellum situation: with states more or less evenly divided between sharply contested status regimes that are comprised of social status structures backed by state law. Formal recognition and formal non-recognition of same-sex marriage by state law would count as “sharply contested,” but with only six jurisdictions currently granting such marriages (and another three recognizing them), the states are not yet anywhere close to “evenly divided.”
Ilya Shapiro was even more bluntly pessimistic: "I too think this was the correct decision... though I fear it will poison our politics in a way not seen from a legal decision since Roe v. Wade."

Ted Frank suggested that even though same-sex marriage is a desirable objective and likely advanced by this decision, the judicial activism displayed by Walker's Perry reasoning will come at a considerable cost:
If you want to see the difference between judicial activism and judicial restraint, take a look at a decision like Judge Posner's in Khan v. State Oil. Posner faced the same situation that Judge Walker did: irrational precedent leading to an irrational result. Posner explained at length why the precedent was incorrect, and why the result was bad. And then he followed the irrational precedent, and reached the irrational result: because only the Supreme Court can reverse a Supreme Court decision. (And, indeed, the Supreme Court "reversed" Judge Posner's ruling, and adopted instead his analysis, all the while acknowledging that Posner acted appropriately in ruling the way he did.)

Judge Walker could have written an opinion like Judge Posner's, making the same arguments, then decrying the fact that the rational-basis test permitted such a law to stand, and calling for either a stronger rational-basis test, or the use of "intermediate" or "strict" scrutiny when it came to laws that discriminated against homosexuals. But he didn't. Instead, Judge Walker misapplied precedent to reach the result he preferred. It may be the "right" result that a good philosopher-king would reach, but American judges are not empowered to act as a wise super-legislature to correct the mistakes of the other branches; the Founders explicitly rejected the idea of a judicial veto. Judge Walker is a judge, inferior in the constitutional structure to the Supreme Court, who does not have the authority to create a new constitutional paradigm.

And when judges act lawlessly to create rights they like, it means they can act lawlessly to take away rights they don't like. Just as we do not waive constitutional protections against self-incrimination and the right to a fair trial for the most egregious murderer, just as we give First Amendment protection to the most abhorrent speech, we should give appropriate judicial deference to laws we might find to be dumb. Fidelity to the constitutional structure is far more important in the long run than my personal preferences on any given issue.
Disagreeing with those who saw Judge Walker's decision as perhaps a step too far and too soon, Andrew Koppelman felt that Walker had done an admirable job in avoiding the more controversial potential bases for this ruling and in developing extensive findings of facts to bolster its foundation on appeal:
Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the “facts” that were invoked in its defense were manifestly false. His job was made easier by the remarkable incompetence of Proposition 8’s defenders in managing their listed expert witnesses, most of whom never testified at all. An appeals court that wants to ignore his findings of fact – something that can be done only if the trial court’s findings are plainly erroneous – will find very little support in the record.

The Supreme Court gets to say what the law is. But it has to accompany its judgment with a reasoned opinion. I don’t envy the judge who has to write the opinion overturning Walker’s decision, while treating these findings of fact with the deference that is normally appropriate for appeals courts.
Several legal bloggers disagreed that the extensive findings of fact in Perry strengthen the decision's chances before the Ninth Circuit and the Supreme Court or that these are even convincing and reasonable. Orin Kerr explained why he believes that the findings are ultimately of little consequence:
If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices... [that] Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January.
Dave Hoffman predicted that Walker's fact-finding will carry little weight on appeal:
[T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type.... It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. That’s just not how constitutional empiricism seems to work.


And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.
Orin Kerr agreed with Hoffman's arguments and added his observation that a number of the Perry findings are mere predictions, while others attempt to conclude matters which are not yet clearly conclusive: "Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts." Mike Rappaport also suggested that the findings would be of limited utility:
The current meme out there -- that the district court decision's will make it harder for the Supreme Court to not reach a broad decision in favor of gay marriage -- is misleading. Either the Supreme Court will give deference, in which case it will reach an extremely narrow decision that does not apply to other parties. Or the Supreme Court will not give deference, and decide it on broader grounds which will have effect throughout the country. In the latter case, though, there would not be deference to the factual findings of the district court.
Several other bloggers discounted the logic or conclusions of Judge Walker's findings. William Jacobson wrote:
There is a certain lack of reality to Judge Walker's fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society.
Noting that Walker had supported his decision concerning same-sex marriage by referencing earlier restrictions on inter-racial marriage, B. Daniel Blatt, who blogs at the GayPatriot site, drew a distinction between the two:
“Miscegenation” laws prohibiting marriages between individuals of different races were a statutory invention. The historical... record is full of such marriages.

Sex difference, however, has always been at the core of the definition of marriage – long before governments recognized such unions.


With his opinion, one federal judge both demonstrates a cluelessness about the history of marriage and a determination to remove one of its defining aspects from its legal meaning.
The most compelling critique of the Perry decision which I read this past week came from Dan McLaughlin; agree or disagree with Judge Walker, I highly recommend that you read McLaughlin's post in its entirety. That being said, I'm now going to do him the grave injustice of excerpting a few portions of it here:
Judge Walker's decision is fundamentally flawed in three ways, two of which represent failures of reasoning and the third of which highlights the structural problem with substituting judicial "factfinding" for the collected judgment of a democratic electorate. Specifically:

(1) Judge Walker's decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has...and which it derives from its grounding in longstanding moral, cultural and religious traditions;

(2) Judge Walker's decision ignores the compelling state interest in promoting childbearing and childrearing within the context of opposite-sex marriage, and the absence of such an interest in same-sex marriage, specifically ignoring the fact that heterosexual relationships produce many more children than homosexual relationships; and

(3) the whole idea of leaving core judgments about a society's most central and longstanding values to a single judge rather than respect the collective wisdom of a diverse electorate is fundamentally anti-democratic.


Tradition is not stasis; it is experimentation verified or abandoned through trial and error But what is striking about Judge Walker's opinion is that while he rejects utterly the value of cultural and moral tradition, his entire basis for finding a constitutional injury in the first place is the very fact of the cultural weight that experience, tradition and morality have given to marriage.


[T]raditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms - and yet it is constitutionally improper to deny the same status to an institution that doesn't comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It's this analysis, not the view of the California electorate, that fails the test of basic rationality.
Though I disagree with his conclusions, I think that McLaughlin touched on a point which will resonate with many Americans, regardless whether they applaud or condemn the Perry result — the dissonance of first discounting long-held cultural beliefs about marriage and then relying on many of those same long-held beliefs to conclude that only same-sex marriage, not civil unions, will satisfy Constitutional requirements. Frankly, these are not distinctions which any judge should be making and it's hard to justify Judge Walker's picking-and-choosing which portions of our cultural beliefs about marriage are valid ones and which are not.

That being said, I think that the result of the Perry decision is a correct one. I suspect many of my fellow "conservatives" feel the same. I think that Norm Pattis' suggestion that there would or will be widespread anger on "the Right" is incorrect. That part of "the Right" which is comprised of religious zealots and social reactionaries will undoubtedly be angry and seek to leverage that anger to enact regressive legal measures in reaction to this "judicial activism"; still, there are far fewer of those people around than one might think, however vocal those few are. Many on the Right are economic conservatives but social moderates; a significant number are essentially libertarian in their outlooks and support the removal of officially-discriminatory measures; amongst younger conservatives there is widespread support for equal rights for all and for homosexuals particularly. In short, the perception that "the Right" is so homogenous as to have a single view on divisive social issues like this one is, I think, a bit outdated and focuses overmuch on the loudmouths on the farthest fringes of the Right rather than the majority with more moderate views.

At The Volokh Conspiracy, Orin Kerr asked a provocative question of his audience: "What conduct or statuses have not yet been recognized as protected by the Constitution; are in fact presently protected by the Constitution; and would trigger widespread shock among a wide range of the public today if they knew the Constitution protected it?" I think that this is exactly the wrong question to ask, because any answer offered to it (and there were many... er, interesting ones) is necessarily incomplete. I'm not the Constitutional scholar Kerr is, of course, but my understanding of our Constitutional rights is that these are of the "everything else" variety.

The powers of government are enumerated ones and (should be) limited in scope; the rights of the people are specifically-described in the Bill of Rights, but those listed rights are not exclusive ones, nor are they particularly limited. The government is allowed limited powers; the people are entitled to claim as their rights "everything else". Indeed, it was this conception of our rights which caused a number of our Founding Fathers to oppose the enactment of the Bill of Rights initially — by listing a few of the more important rights, they feared that future American governments would discount those rights which weren't listed, and that future American generations would allow this to happen because they didn't see a particular right spelled-out for them.

For these reasons I think that the judge's discussion of the "right" to marry is fundamentally misguided and has, very unfortunately, sent the ongoing debate over same-sex marriage down a meandering path, albeit to an admittedly correct and desirable destination. It does not matter one whit whether as a people we've placed tremendous emphasis on marriage rather than different and lesser arrangements; it doesn't matter whether civil unions are as good as marriage or not; it doesn't matter whether public acceptance of homosexuality is increasing or static. Marriage is a right because it's not amongst government's enumerated powers to deny it to us. Similarly, one could say that civil unions, or private contractual arrangements creating similar sorts of unions, or any other form of personal commitments are rights because, generally-speaking, one would be unable to fit a prohibition of these arrangements within the scope of the government's enumerated powers.

Where we got ourselves into trouble is involving government in the sanctioning of these arrangements. Notwithstanding, once we involve government, that involvement cannot be used to favor or disfavor any citizen's rights over another's. There's your short answer. Same-sex marriage is a right not because the Constitution mentions it as such, but because it is not prohibited by the Constitution and the government given authority to prevent it. It is a right not because we have a long and glorious history of public acceptance of gay rights, but because we have historically involved our government in marriage — to sanction it, promote it, and benefit it — and in doing so, the government cannot favor one group of "married" folk over another.

Asking then what other "rights" we have that are not yet recognized is beside the point. We have the Constitution's listing of the powers of government; "everything else" is ours, from the right to marry whom we want to the right to use technologies not yet conceived or to explore places not yet discovered or do things which are presently beyond human capability once we become capable of these.

"Everything else" is our right. The Perry decision has put a name to and clarified a small portion of that "everything else", but in doing so has not changed the scope of that right. It may, however, have changed us for the better.

CEOs of Google and Verizon

Google and Verizon spent a bit of time dividing up your digital universe this week and more than a few folks are perturbed about it.

Last Thursday, Steven Titch noted reports at Bloomberg and The New York Times that Google and Verizon had concluded "a separate peace" — to wit, an agreement that Google's services would be allowed priority over Verizon's networks:
If the two companies reach an agreement, it could be a death blow to the entire “non-discriminatory” idea behind network neutrality: that no service provider should be give favored treatment to any service or application. FCC Chairman Julius Genachowski has made it a mission to get the “non-discrimination” principle encoded into law, to the point of calling for reclassification of broadband ISPs as regulated telecommunications carriers.

If Verizon sets up tiered pricing for Google applications, the non-discrimination genie is out of the bottle for good. It would be a direct “I dare you” challenge to the FCC to block it. Armageddon indeed.


As has been the case in the past, Google is sending mixed messages. The New York Times broke the story last night, and the Wall Street Journal followed up today, noting that a formal announcement could come as early as Friday afternoon. On the other hand, a Tweet about 10:50 a.m. ET from Google Public Policy Blog said flatly, “The New York Times is wrong. We’ve not had any convos with VZN about paying for carriage of our traffic. We remain committed to an open internet.”

Google’s public policy side has been left out of the loop before, so let’s take that denial with a grain of salt.
Marvin Ammori, who is an advocate for FCC-enforced net neutrality, also declined to take a tweeted denial from Google's Public Policy group at face value; he discussed what was at stake should reports of the Google-Verizon arrangement turn out to be accurate:
[A]s a business matter, the deal is important. And, yes, it may be the end of the Internet as we know it, if the FCC blessed such deals. The deal yesterday announces that Verizon and Google open the door to all of this.


This deal only proves that the biggest corporations have incentives to disadvantage innovators--which will harm our economic growth, job creation, and global competitiveness. It only proves that the threat to network neutrality in the market is real. It only proves that network neutrality rules are necessary. And it only proves that the FCC's negotiation-talks, which I discussed yesterday, receive little respect from the corporations engaged in them (maybe for good reason).

The deal does not indicate that US government policy has been decided. Especially when the Google-Verizon deal contradicts the policy position of a few people whom our Constitutional structure does imbue with authority over government-policy: President Obama... and the FCC Chair.
Mike Masnick suggested that the instincts of companies to negotiate private advantages for themselves was unsurprising, particularly when one considers the ineffectual discussions held recently between various companies and the FCC on the net neutrality issue; instead, the Google-Verizon pact was, if anything, more noteworthy as an indicator that Google's interests have diverged from consumers':
[T]he real question is whether or not this agreement is good for just those two companies, or good for consumers. In many of these negotiations, Google had been playing a proxy role in fighting for consumers -- largely because in many of those fights, what was good for the consumer was, actually, good for Google. However, we've been warning for years, that as Google's interests diverge, people shouldn't rely on Google to always fight the principled fight, because its business models won't always align with consumers' principles. There's nothing wrong, of course, with supporting a company that is fighting for consumer rights when it helps to have them on your side, but people should always remember that eventually there will be a conflict between what's best for the consumer, and what's best for the business. This isn't a surprise, or anything damning Google directly -- but more a reminder for those who kept expecting Google to always fight for the consumer.
When the arrangement was formally announced by Google and Verizon a few days later, Masnick examined the details and concluded that the deal, such as it was, was essentially meaningless. What he found was that, to no one's surprise, "it basically looks like exactly what was discussed last week, despite vehement (and, at times, mocking) denials by the CEOs of both companies about last week's reports." It was a "proposal" rather than an arrangement, agreement, or deal; it focused on the wireless internet rather than the wired one. Are these differences worth noting? At its heart, the Google-Verizon pact indicated both parties' willingness to abandon the concept of meaningful net neutrality, particularly on the lucrative wireless networks where we're likely to spend the vast majority of our online lives in coming years. Though paying lip service to the idea of net neutrality, in substance the proposal was chock-full of loopholes for both Google and Verizon; Matthew Lazar considered those in some detail:
"In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users."

So who is going to decide what kind of harm is "meaningful"? Presumably the Federal Communications Commission, which gets to issue $2 million fines—except that under this plan the agency would enforce its components "through case-by-case adjudication, but would have no rulemaking authority with respect to those provisions."

"Parties would be encouraged to use nongovernmental dispute resolution processes established by independent, widely-recognized Internet community governance initiatives," the proposal continues, "and the FCC would be directed to give appropriate deference to decisions or advisory opinions of such groups."

In other words, some kind of organization dominated by Google and Verizon would decide what constitutes "meaningful harm," and the FCC would do what it tells them to do.
Lazar continued, explaining that the proposed presumption against traffic discrimination is an exceptionally weak one which would fall by the wayside whenever providers determined that such discrimination served our needs or their networks' or whenever they added... something to their plain-vanilla services. Frank Pasquale also noted the "additional services" language and offered a prediction about the future of content-neutral internet service should that language become the rule:
The key question here is the quality and cost of the “broadband Internet access service complying with [net neutrality] principles,” as compared with the “additional services” that can be offered without net neutrality. In the best case scenario, most people use the compliant service for most traffic, and run “additional services” on top of it in order to access special content/apps. Unfortunately, I think it’s far more likely that the net-neutrality-compliant service will gradually decline in quality, so that it’s vestigial (like public broadcasting) or a poor program for poor people (ala Medicaid).
That seems a safe bet, as do his suggestions that the Google-Verizon pact heralds a period of increasing "vertical integration of the physical, app, social, and content layers of the internet".

Ryan Singel discussed how Google's change-of-heart on wireless net neutrality is explained by one changed circumstance — since 2007, when Google went "all-in" for wireless net neutrality, the growing smartphone market has become a two-horse race between Apple's iPhone OS and Google's own Android OS. With Palm OS on life support at HP, Nokia's Symbian OS an afterthought for most American consumers (despite its large international market share), and Microsoft's very promising mobile OS only very-recently launched and without widespread acceptance... well, Google has nothing to gain by pushing for net neutrality on mobile networks:
...Google doesn’t care. By surrendering — and by surrendering, I mean, giving up the fight it claimed to be waging on your behalf for open wireless networks — it wins billions of dollars in online, mobile ad revenues.

As a result, openness in the mobile market is no longer in Google’s best interest.


Mobile openness is the tool of the outsider, not the incumbent. Google is now registering some 200,000 Android handsets every day. Phone-to-phone, Android is now outselling the iPhone. Google doesn’t need openness anymore.


If Google fought for wireless neutrality, it would give Microsoft another shot to break into the mobile market.

And why would Google want that?

The answer should be: its principles, its years of rhetoric about openness, its $4.6 billion bet on open wireless spectrum, and its famous mantra, “Don’t Be Evil.”

But principles are easy to discard, it seems, when one’s in search of the next goldmine. “Don’t Be Evil” can become “Just Don’t Be Stupid” when you’re in first place.
For its part, the FCC doesn't take kindly to being disintermediated and at least one of its commissioners responded to the Google-Verizon announcement (as reported by the Electronista blog):
FCC Commissioner Michael Copps late Monday put out a statement downplaying the Google and Verizon net neutrality proposal. The official characterized the proposal as inherently flawed and reiterated the FCC's view that principles come first. Google and Verizon don't have final responsibility, the statement suggested.

"Some will claim this announcement moves the discussion forward," Copps wrote. "That's one of its many problems. It is time to move a decision forward--a decision to reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations."
So, if you've read this far, you've concluded that I'm a proponent of net neutrality on both wired and wireless networks, right? I might be. I might not be. Frankly, I don't think it'll make much difference in the long run, regardless. As Peter Suderman pointed-out, those who are up-in-arms about the possibility (even probability) that an absence of net neutrality will result in diminished consumer choice, greater lock-in to content providers, and higher barriers to entry for new cloud-based services should recognize that, in large part, we're already there:
At The Washington Post, Celia Kang notes that, under the terms of the deal, “Verizon could block an application such as Microsoft's Bing search service from its subscribers' mobile phones, or it could charge consumers extra for access to certain popular applications delivered at better quality than other Web sites.” If you want something to worry about, this is probably it (although I suspect that consumer pressure would push providers to exercise a lot of caution in blocking competing services). But even still, how is this really all that different from the choices consumers make in the current mobile marketplace? Anyone looking to buy a mobile data device must already choose between a variety of phones, operating systems, networks, and application sets. Buy a Droid, and you don’t have access to iTunes, or the App Store. Buy an iPhone, and you’re not going to be able to use Verizon’s network, or its GPS capabilities. As long as mobile providers aren’t misleading customers about what they offer (or what they don’t), it hardly seems like a serious worry that consumers must select from a variety of different feature sets.

And, of course, that’s the big picture here: allowing and encouraging a diversity of feature sets and service options for content providers and consumers. Neutrality advocates stress the concept of equality for a reason -- the goal is to ensure a level of sameness amongst consumers. But when it comes to information-service markets, especially the growing world of mobile data access, not all plans, phones, and networks are created equal. But that’s as it should be, because not all consumer needs are the same. Those who want more should be able to pay for it. Those who don’t shouldn’t have to.
Ultimately, I think that however desirable net neutrality might be as a concept, the cost to achieve it is too dear. The bottom line is that if net neutrality is a commercially-desirable outcome, it will happen because the network and content providers want to happen; no "enforcement" would be needed because deviations would naturally be avoided. Similarly, if network discrimination were to be practiced in such a way or to such a degree that consumers were severely hindered or disadvantaged, the market will tend to correct the most egregious practices.

Instead of net neutrality, consider something like carrier lock-in. Generally speaking, consumers would prefer not to be tied to a particular carrier for an extended period of time but would rather be able to move from one carrier to another as they wish. What prevents them from doing that? In most instances, themselves. A year ago, if people wanted a top-of-the-line Android-based smartphone, they could buy the Nexus One and get a voice and data plan with either AT&T or T-Mobile (the US's GSM-based networks) as they chose. Did they? By and large, they didn't; they opted instead for a heavily-subsidized Droid phone and a multi-year commitment to Verizon. In other words, they voluntarily gave up something for something (and grumbled about having to make a choice, which is the American way).

What if the government had listened to the grumbling and mandated that henceforth all phone models must offer some variation to work on any network and no one can be held to more than a month-to-month contract? Fewer phones, because it would be very costly to offer a GSM (AT&T, T-Mobile), CDMA (Verizon), and tin-cans-and-string (Sprint/Nextel) model for each phone; more expensive phones, because the carriers would have no way to recoup subsidized handset costs through multi-year contracts with prohibitive buy-out clauses; and more expensive service plans, because the costs of maintaining and upgrading networks would need to be recouped on a less-certain customer base. Yay for carrier neutrality! Of course, that didn't happen — we didn't need government intervention because we made our choices in the market. We chose carrier-specific phones and committed to particular carriers because we wanted it all for a lower price (or, in the case of the AT&T-exclusive iPhone, we wanted the phone) and this became the norm.

On net neutrality then, if it makes business sense for Verizon to discriminate amongst the content on its network and demand higher prices (either from content providers or customers) for better treatment, they'll seek to do so. If it makes business sense for Google (or Verizon's customers) to pay a premium to get Google content through faster, they'll seek to pay for that privilege. To prevent this from occurring will require government to put a thumb on the scales. We'll pay for that intervention if it occurs. Regulatory costs will be passed-along somehow and the costs of inviting government involvement where it wasn't before... well, we know how that story always ends.

If the enforcement thumb belongs to the FCC, as they'd like it to (and, moreover, as was proposed by Google and Verizon), I think we can expect them to ultimately embrace content discrimination, not to steadfastly oppose it but for a few limited circumstances. Given authority, government generally and the FCC particularly seek to expand that authority to cover new and different concerns. If Verizon can discriminate between Google's traffic and others', making Google's services more accessible (and desirable) for a price, why can't it do the opposite for "undesirable" sites, like those offering pornography? You have a First Amendment right to watch pornographic content streamed over your internet connection; you don't necessarily have a right to watch it at the highest bandwidth. Given some authority to regulate which content is allowed at which priority and speed, the FCC will at some point seek to disadvantage the types of speech it's long-opposed or promote the types it's favored.

Is your site pornographic? Then Verizon can't offer it at the priority "Google" level even if you're willing to pay for the privilege.

Does your site feature off-color speech? Low priority.

Any nipple slips on your streaming webcast? It's at the plain-vanilla tier unless you're willing to put it on a ten-second delay, hire a couple of censors to monitor and pixelate, and send quarterly reports to the FCC, all subject to fines of course.

Political speech is sacred, naturally, so anything the White House or Congress wants to say must be transmitted through the network at no less than the highest priority level, whatever that might be in the future.

Ultimately, what the net neutrality debate is about right now is not whether it's a worthwhile objective (in most instances, it probably is) or whether service and content providers will discriminate if it's profitable to do so (they always will). Instead, it's a question whether leaving this decision to the market is so destructive that it's worth inviting the government to override the market, with all that that entails. By no stretch of the imagination is that latter option the better one. A few observers have argued that net neutrality is critical to ensuring free speech on the internet and they want the FCC to enforce such a rule. They're wrong, and Adam Thierer and Mike Wendy explain why better (and more succinctly) than I could:
We should be skeptical of any claims that net neutrality regulation is consistent with the First Amendment, let alone required by it. As First Amendment attorney Robert Corn-Revere has noted... “It should not be forgotten that the federal government’s initial impulse [in the mid-1990s] was to censor the internet and to subject it to a far lower level of First Amendment protection.”

The real “Big Brother” threat here is a government with the power to completely foreclose all speech under threat of fine or imprisonment — a power the private sector lacks even if you buy into the silly notion that it is out to bottle up speech or speakers.


Simply stated, the Internet’s First Amendment is the First Amendment — not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the digital economy.

Net neutrality regulation is also tantamount to a declaration of surrender on broadband competition and a call to return to the era of public utility-style regulation. We shouldn’t give up so easily on the idea of facilities-based competition that only got started 14 years ago with the Telecommunications Act of 1996.

If broadband providers ever possessed “gatekeeper” or “bottleneck” power that required regulation, that rationale for regulation no longer exists. The internet has clearly changed the communications landscape, mooting old regulatory ideas once used to justify heavy-handed government regulation of mass media speech and its underlying infrastructure.


Corporations go out of business if they no longer serve consumers. The government and its agencies do not. For the former, the combination of technological innovation, consumer education, industry best practices and competitive markets all work to blunt the abuses — real or imagined — of broadband providers. But only the Constitution and the Bill of Rights restrain the government.

Odds n Ends Shop

Rick Horowitz is an eloquent writer, but unlike many who have a way with words, he always writes from the heart. He has an ability few do, to persuade without persuasion and to cause his readers to not just sympathize with the injustices about which he writes, but to feel them. One such post, for me at least, was his "A Broken Fence" piece, which appeared on his blog a couple of weeks ago; in it, he wrote about how he was reaching the end of his patience with the criminal justice system and, more generally, with the increasingly-invasive, oppressive, and unjust authority which our government wields:
I haven’t posted much lately, I know. To be frank, I’ve considered just taking down my blogs. I’ve struggled with the decision as to what to do — and tried to understand why I feel the way that I feel. It’s not that I don’t have things to say: I’ve written numerous posts. I just never complete them because, well…it hardly seems worth it.

Our system is irrevocably broken. Nothing short of a new Revolution would fix it. And I’m not at all sure the Americans of today can fix it even then. We can only, at best, tear down the present Tyranny.


The Constitution and the Bill of Rights are completely useless unless our elected representatives are men and women of honor, committed to protecting and defending those rights.

And, increasingly, they are not.

Day after day, I go out to “do battle” in an adversarial system the goal of which is sometimes described as “to seek justice,” or, at the least, “to preserve the social order.” But “preserve the social order” can mean a lot of things. If it means something like “preserve the world in such a way that the haves continue to have and the have-nots continue to have not,” then there is no relationship to justice. If it means “to provide a means whereby those who have been wronged can have some chance of being made whole again” and “to provide a means whereby those who have proven they are not able to live in a civilized society can be handled in such a way as to assist them in becoming less harmful to others, or in a way that protects us when they will not ‘reform,’” then there is the potential that it connects to the concept of Justice.

Increasingly, our “Justice” system has become disconnected from the concept of Justice — whether you like to spell justice with a capital “J” or not.

This, I’ve found, is a difficult world for me to live in. It’s the kind of world in which I find myself increasingly on the side of troublemakers — I do not mean “criminals,” although certainly if I were to take the obvious path of armed resistance, that would make me into a criminal in the eyes of most people.

And I have no desire to be a criminal. I simply desire to interfere with the criminals who, increasingly, are running our system; nominally, our “justice” system. And make no mistake, criminals are what they are: those who would destroy the values on which this once-great nation — this Great Experiment, as it was called — was founded, while making a pretense of upholding those values are worse even than the criminals who kill, rape, or rob from people. They — the judges, the prosecutors, the law enforcement officers who consider the Constitution an impediment to the achievement of their goals — destroy an entire society. They bring to an end our Great Experiment.
After that post, his blog was quiet for a time, until this past week, when Horowitz discussed the good players in the justice system, the bad ones, and why, on balance, ours is an ugly system:
[T]here has been a major sea change in the last few decades of American jurisprudence. When the system our Founders created is properly functioning, it is quite difficult for the State to convict a person accused of a crime. This is how it is supposed to be! Otherwise, we get what we have today: too many innocent people in prisons. Too many men whose lives are stolen on the flimsiest of evidence. Freeing innocent people 20 and 30 years after the fact — if at all — does not make up for that. But over the last few decades, “victim’s rights” and other political considerations have resulted in a system that makes putting innocents away far too easy.

No small part of this has been trying to mitigate any part of the system which tips the scales of justice in favor of the accused. Anything that somehow makes it easier to defend must be undone; conversely anything that makes it easier to prosecute must be supported. Prosecutors who have lost touch with the point of their existence, those who think it’s all about the win and justice be damned, take advantage of this. They refuse to provide discovery; they tell witnesses not to talk to the defense; they overcharge in order to encourage the accused not to risk trial: they simply cannot afford to accept any system that gives an accused a fighting chance; they cannot risk a loss.


I can point to at least one deputy district attorney I know whom I consider to be braver, more principled and worthy of much greater respect than pretty much any other person I know. I hope that person knows of whom I speak — I don’t know if that person is even a reader of this blog — because I will not name that person. Part of what makes that person worthy of respect is exactly what the author of D.A. Confidential noted: despite being on the opposite side of A Broken Fence from where I stand, that person, too, is “hoping, wanting, willing to mend it.” That person’s bosses, however, won’t allow for that. Deputy District Attorneys like that individual are instead punished for being like that. I wonder, with a great deal of sadness, how much longer that person will be able to continue in the D.A.’s office.

And, in fact, there are more such good prosecutors, along with more than a few good cops and good judges.


There’s not a lot of reason for me to be writing about the good guys, except when I need to contrast them with the bad guys. But even I know — even when I’m railing, writing, fighting — that not all those involved are bad. Conversely, that there are good cops, good prosecutors and even good judges is not reason to think all is right with the world. The fence — the United States Constitution with its implied Rule of Law — is broken.

Today’s “justice” system is, indeed, populated by the Good as well as the Bad. That doesn’t stop today’s warped system from being downright Ugly.
The system may indeed be broken, but we can remain somewhat hopeful about it so long that good people like Rick Horowitz aren't broken by its injustices.

Even amidst the ugliness, however, sometimes we can celebrate a victory for justice. Brian Tannebaum wrote about one such victory recently:
My client didn’t just get lucky here, beat the rap, or escape justice. He was innocent. Yes, for all those who said after the trial “what did he do,” the answer is “nothing.” He was an unknowing participant in a scam.


This is a case where my joy over the acquittal is tempered with my disgust for the government in even bringing this case. The prosecution was a waste of time and money. The presentation of evidence was disingenuous. The government knew what happened here, but acted throughout trial as if “hey, we’re not sure.”

That this case ended in a not guilty is a tribute to the fleeting thought that the system, despite a prosecutor who tosses discretion in favor of an attempt to prove criminality, can still work.

As I said in my closing: “this case isn’t even close.” There was no knowledge, no intent, and no specific intent to defraud. None. Zero. Still, I engaged in a war with the federal government, who poured water on the jury and asked them to trust that it was raining.

They were smart enough to look up.
I'm hardly a "colleague", but as a casual online acquaintance and a member of the profession at least, I'll offer an "attaboy". I know Tannebaum doesn't need it or want it, but "attaboy" moments are few and far between and we need and want to celebrate them even when he doesn't.

Scott Greenfield recommended a recent article in the excellent magazine City Journal which effectively critiqued decades of failure and misplaced faith in social science:
The article goes on to state, and demonstrate, the inability of social scientists to craft programs that success and results that can be replicated. Jim Manzi, the author, concludes, among other things, that there's just no magic, no matter how high-sounding or logical the solutions appear. The human condition is too varied, complex and unpredictable to be transformed so easily.

This is really a very important piece to consider on many levels, particular for those of us who promote ideas that we would believe to improve criminal justice and its outcomes for people. Ideas that make so much sense to us, or which social scientists tell us will solve the problems that vex us, receive our strong, and often blind, support. We support them at the expense of other concerns and priorities in the belief that they will cure a disease, making it worth the commitment, only to be disappointed when it becomes apparent long afterward, and having suffered for the choice, that it turns out not to be the magic bullet solution we thought/hoped it was.
Much of the blame for these failures can be attributed to ourselves — we put too much stock in these sorts of studies because we want to have certainty where there is none to be had, to approach inherently subjective matters objectively, and to justify with science what is, in essence, a crapshoot. At least we can say with some conviction that those who originated these studies and programs were, by and large, sincere and methodical individuals who believed that they were doing something good. The same cannot be said of the fraudulent acts of bloodstain pattern analysts Gerald Thomas and Duane Deaver, whom Bad Lawyer discussed recently:
On Jan. 15, 2008, Brown met with Thomas at the SBI [North Carolina State Bureau of Investigation] lab. Thomas brought Deaver, his mentor. Thomas and Deaver agreed with the prosecutor that the blood smear on the front of Kirk Turner's T-shirt was made by the knife that killed Jennifer Turner, Thomas wrote in an e-mail message. There was a problem: In his initial report from September 2007, Thomas had written that the stain was probably made by a bloody hand. Thomas took his Sept. 14 report and changed one paragraph. He removed 'a bloody hand' and replaced it with 'a pointed object, consistent with a knife.'

Thomas took no notes of the January meeting, though SBI policy requires it. He made no separate report on these activities, though SBI policy requires a report within 15 days. He made no notation that he had amended or changed or updated his report after reviewing the evidence a second time. The date on the changed report: Sept. 14, 2007, the same as the original.

In April 2009, Kirk Turner's lawyers received a report from their blood pattern analyst, Stuart James of Fort Lauderdale, Fla. James' books on bloodstain analysis are used by the SBI.

James disagreed with many of the agents' conclusions. The smear on the shirt was not made by a bloody hand or a knife, James said. It was most likely a 'mirror stain' created when the shirt was folded, perhaps as EMS technicians cut the shirt off Turner or when they tossed it on the floor.

In an e-mail message to a fellow SBI agent in May, Thomas said he would stick with his knife hypothesis. He promised to conduct tests 'to shore up this argument.'

Thomas and Deaver conducted tests that bore no resemblance to science, at least as it is described by leading experts in the field. Instead of rigorously testing and having peers review their findings, they conducted two tests designed to produce the result they sought.

Video of their work shows that twice, Thomas donned a clean shirt. Each time, he dipped a knife in blood, careful to get blood only on the edges. He carefully wiped the blade on his shirt in an attempt to leave a stain that resembled the outline of the knife. The second attempt was more pleasing to Deaver, who was filming. His comments, audible on the video, were more film director than scientist. 'Oh, even better, holy cow, that was a good one,' Deaver exclaimed. 'Beautiful. That's a wrap, baby.'


When Thomas' report about the shirt was shown to be wrong in front of the jury, Thomas refused to change his conclusion, saying he was sticking with his lab experiment. James, the bloodstain expert, asked several peers to review his work in the case, including Lisa DiMeo, who works for both defense and prosecution as an independent forensic examiner in San Diego. DiMeo said she was appalled by the tests run by Thomas and Deaver.

'I'm glad there was audio, so you could hear the person doing the video directing the actor what to do,' DiMeo said.


The Turner case is not an isolated instance. In at least three other cases, the tainted work of Deaver or Thomas has played a part in reversed sentences or outright acquittals.
Appalling, yes, but not as troubling as what we don't yet know — how many as-yet unreversed and unremedied convictions has such fraudulent testimony from prosecution "scientists" like Deaver and Thomas "shored-up"?

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., The Zero Room, eWeek (via Google Images, naturally), and Paris Odds n Ends Thrift Store.

1 comment:

Rick Horowitz said...

You make me feel like a good guy!

One of these days, though, I'm going to have to write something you like sooooooooo much that it gets nearer to the top. ;)

Thanks for including me in another Round Tuit. I always get a kick out of being included!