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First Sentences

 “When I was six, my father gave me a bright-red scorebook that opened my heart to the game of baseball.” Doris Kearns Goodwin, Wait Till Next Year: A Memoir.

“Would you rather love the more, and suffer the more; or love the less, and suffer the less?” Julian Barnes, The Only Story.

“On September 25, 1988, the writing finally stopped.” Matthew M. Briones, Jim and Jap Crow: A Cultural History of 1940s Interracial America.

 “Stan Carlisle stood well back from the entrance of the canvas enclosure, under the blaze of a naked light bulb, and watched the geek.” William Lindsay Gresham, Nightmare Alley.

 “The first Harlemites didn’t quite know what to make of the strange object that sailed up the river in the late summer of 1609.” Jonathan Gill, Harlem: The Four Hundred Year History from Dutch Village to Capital of Black America.

“In 1945 our parents went away and left us in the care of two men who may have been criminals.” Michael Ondaatje, Warlight.

“Two of the most monstrous regimes in human history came to power in the twentieth century, and both were predicated upon the violation and despoiling of truth, upon the knowledge that cynicism and weariness and fear can make people susceptible to lies and false promises of leaders bent on unconditional power.” Michiko Kakutani, The Death of Truth.

“There was an Indian head, the head of an Indian, the drawing of a headdressed, long-haired Indian depicted, drawn by an unknown artist in 1939, broadcast until the late 1970s to American TVs everywhere after all the shows ran out.” Tommy Orange, There There.

“Even in Los Angeles, where there is no shortage of remarkable hairdos, Harry Peak attracted attention.” Susan Orlean, The Library Book.

“Marsh is not swamp.” Delia Owens, Where the Crawdads Sing.

“I’m standing on the red railway car that sits abandoned next to the barn.” Tara Westover, Educated.

“A christening shawl decorated with periwinkle and yellowed asparagus fern hung in the window of our stone house for two years.” Wioletta Greg (translated from the Polish by Eliza Marciniak), Swallowing Mercury.

“The first time I looked into the face of opioid addiction, it was of a heavily made-up woman in her late fifties at a food bank in eastern Kentucky.” Chris McGreal, American Overdose: The Opioid Tragedy in Three Acts.

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“For Example” is not Proof. Yiddish Proverb (concluded)

Law school prides itself on teaching critical thinking, and to some extent it does, but it tends to limit that goal to the examination of texts and words and how to use those materials to make arguments. Law, however, is filled with empirical propositions and suppositions, and legal education does almost nothing to teach a better understanding of thinking about them.

For example, in a famous nineteenth-century case, a barrel fell out of a window and hit someone. The court said that we can assume if you are hit by a falling barrel, it must be because of negligence, and since the defendant controlled the barrel, he was liable. That a falling barrel means negligence is, of course, an empirical proposition. It seemed intuitively right to that long-ago judge, but also to me and my students. But I asked the students, if we are not to act on intuition alone, what would we need to know about falling barrels to make the determination that negligence is the likely cause of the plunge. I would only get blank looks from the students who were eager to opine on many other topics.  They did not have a clue about how to begin to think about the question even though a problem following the judicial opinion in the casebook suggested an approach. 

It said something like this: Assume that one in a thousand barrels is negligently secured and that nine out of ten negligently secured barrels fall.  Assume that one in a hundred non-negligently secured barrels falls. What are the chances that a falling barrel is the result of negligence?

Most of the students assumed that the problem was beyond their abilities even though a solution to the hypothetical was in the book they were using. The problem requires no great mathematical ability—no knowledge of standard deviations or t-tests–only some critical thinking. However, because numbers were involved, these college graduates could not think it through. Their minds simply shut off.

But the problem is not just with those students. I have written some articles about forensic science and scientific evidence that have received attention. When the Supreme Court handed down a decision about scientific evidence, I was invited several times to address lawyers and judges about that case and other aspects of scientific evidence. I usually opened my talk by saying that in my experience lawyers and judges were a reasonably bright, educated group of people who became lawyers partly because they were afraid of math and science. I almost always got a nervous chuckle of recognition. (I said something similar to scientists, usually forensic scientists. Scientists are often people who have been taught to use a technique, but not how to think. This was especially true for the forensic scientists, but that line was only met with outrage.) 

I told the lawyers, judges, and students that they could not simply turn off their minds when numbers appear or science is mentioned. Instead, they must be able to think critically about empirical propositions, something that was within their ability. Empirical propositions often require, or should require, the collection and analysis of data. That will mean numbers. That will mean that one needs to understand some basics about good and bad data collection and how to think about those data.

Few I addressed seemed to believe that they could do that and that is a failure of our education.  I am not suggesting that mastery of advanced mathematical or scientific concepts is necessary.  Instead, we all should learn that intuitions about empirical propositions are often wrong and learn basic methods of examining data and how such data can be interpreted.  A good liberal education may encompass much today, but it often does not include this. Learning about the basics of probabilities and statistics is a step on that road.

However, something even more important must be absorbed. We seek certitude, but we must learn to be humble with our certainties and learn to question them. Antoinette Deshoulieres, the French poet, was correct when she said, “Seeking to know is only too often learning to doubt.”

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“For Example” is not Proof. Yiddish Proverb (continued)

The anti-vaccination movement not only indicates the power of anti-government feelings, but also important aspects of human thinking in general. We don’t like to live with uncertainties and the unknown. We want answers. My child has autism, and I want to know why. What caused it? For many, “we don’t know” is not acceptable, and they seek some sort of answer. Johann Wolfgang von Goethe said, “Mysteries are not necessarily miracles.” But for bad things, we look beyond miracles and often settle on conspiracies. Autism had to be caused by something, and the vaccine is blamed. We will make up an answer if no answer is available.

Misinformation that has taken root is hard to eradicate. Once we believe something, we want to continue to hang on to the belief. Instances of this are legion, and all of us can cite particulars. This trait permeates all strata of society. For example, a recent article by Gina Kolata, https://www.nytimes.com/2019/07/01/health/medical-myths-doctors.html, reports that nearly 400 routine medical “practices were flatly contradicted by studies published in leading journals.” An example: Ginkgo biloba is widely promoted as a memory aid, but a large study published in 2008 “definitively showed the supplement is useless for this purpose. Yet Gingko still pulls in $249 million in sales.” In spite of the scientific research, the gingko biloba myth lives. What T. H. Huxley said about science, indicating how it advances, should be a benchmark for all of society: “The great tragedy of science—the slaying of a beautiful hypothesis by an ugly fact.” But all too often facts do not win out over what we believe.

Moreover, misinformation can easily take root because our instinctive reactions to empirical propositions are often wrong and because our education often does not do enough to train us to think more clearly about empirical propositions. The ground-breaking work of psychologists and economists Daniel Kahneman and Amos Tversky shows that human judgment and decision-making are frequently flawed in predictable ways. Of course, many people know of their studies, but they should be even more widely known than they are. Their research applies not merely to some academic or specialized field, but to all of us as we make judgments about the world in all aspects of our lives. Kahneman and Tversky’s seminal book written with Paul Slovic in 1982, Judgment Under Uncertainty: Heuristics and Biases is not only readable but also fun as is Kahneman’s 2011 Thinking, Fast and Slow. Critical thinking should be part of our basic education, and the wit, wisdom, and research of Kahneman and Tversky should be included.

Critical thinking would also be advanced by the increased teaching of probabilities and statistics in our schools. This thought stems from my own high school math education, which had what might be considered the usual geometry, trigonometry, and algebra. These all helped my thinking, and while I have probably used that geometry more than I realize, I am like many others who say trig and algebra haven’t cropped up much in their adult lives. But I also took a course that had units that included calculus, set theory, and probability and statistics. As I look back, I realize that probability and statistics has been most important to my thinking through the years.

As most of us do, I encounter news of polls and medical and scientific studies, and their meaningfulness requires some understanding of probabilities and statistics as well as does much of the sports information I absorb. But most important was that P & S taught me important things about critical thinking in general, and it taught me to recognize my own and others’ sloppy thinking when we make factual assertions.

Even before reading Kahneman and Tversky, I had realized how bad intuitions, including mine, were about empirical propositions and that something more objective than gut feelings were needed. Probabilities and statistics helped me realize, for example, that a temporal sequence does not necessarily mean a cause and effect and that correlation and causation are separate concepts. Nevertheless, we all too easily fail to recognize our flawed causational judgments. A case in point: Just because autism is diagnosed after the MMR vaccine is given does not establish that the vaccine causes measles.

I learned from probability and statistics that comparisons are often needed to advance empirical knowledge but devising and assembling adequate control groups can be a tricky business. And we need to have some understanding of the statistics used to make the comparisons.

However, many of us who have not been deeply trained in science and math simply throw up our hands when we encounter either and fall back on some shortcut to determine what we decide to believe. My law school teaching showed me that time and again.

(concluded July 26)

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“For Example” is not Proof. Yiddish Proverb

We have had an outbreak of measles even though a vaccine had seemingly eliminated this childhood disease. A lot of people don’t have their children vaccinated, putting their offspring and other people’s babies, who are not normally vaccinated in the first year of their lives, at risk for the disease.

One outbreak has been in orthodox Jewish communities where parents cite religious beliefs for the lack of vaccinations. I do not know what these religious beliefs are, but I don’t think measles or vaccines are mentioned in the Hebrew Bible. Other parents claim a non-religious personal belief for the failure to vaccinate. Many of these people believe the canard that the measles vaccine causes autism.

This belief can be traced to Andrew Wakefield, then a gastroenterologist, who published a paper in the prestigious British medical journal Lancet in 1998, linking the MMR (measles, mumps, and rubella) vaccine to autism in eight children. A dozen years later, a British medical agency found Wakefield had committed professional misconduct and revoked his medical license, and Lancet retracted his study.

Almost a dozen studies since Wakefield’s paper have examined the connection between the vaccine and autism. None found a link. The latest and largest study was of 657,461 Danish children between 1999 and 2010. It, too, found that the vaccine did not cause autism, but it noted that autism often appears at about twelve months, the time when the vaccine is first given, leading to the unwarranted conclusion that the vaccine and autism are connected.

The United States National Vaccine Injury Compensation Program, a no-fault system started in 1988, covers claims related to fifteen childhood vaccines and seasonal flu shots. That program’s data show that during the last dozen years, over 126 million doses of measles vaccine have been delivered, but only 284 people have lodged claims with NVICP about harm from it. A mere143 claims were found to be meritorious.

The vaccine does not cause autism, and other harms from the vaccine are exceedingly rare. On the other hand, measles itself is much more dangerous than the vaccine. Hundreds of people die from measles each year around the world. Before the vaccine in 1963, 3 to 4 million people were annually infected in the U.S. with the measles causing 400 to 500 annual deaths. About one in four who get measles are hospitalized, and one to two out of a thousand are likely to die. Why, then, do parents put their children, and other children, at risk of measles?

Part of the reason is a mistrust of government and other “official” institutions. I saw that in strange way in the recent college class I taught when the measles vaccine was discussed. A student said that it was only natural that people were leery of vaccinations and referred to Osama bin Laden and the polio vaccine. I looked up some old news articles that indicated that our CIA had used a hepatitis B vaccination campaign to help locate the al Qaeda leader by seeing if the DNA of vaccinated people in a certain compound were his relatives, and this CIA initiative had added fuel to a Pakistani movement against the polio vaccine. I did not understand this story’s relevance to the measles vaccine. I am not aware of the anti-vax people in the U.S. citing the hunt for bin Laden as a reason for not vaccinating their children, but the comment, while not entirely correct in its details, conveyed a suspicion of governments that has prevented vaccinations. On the other hand, such suspicion does not undercut the fact that the measles, polio, and hepatitis B vaccines work, and that their benefits far outweigh any harms. The real takeaway from the bin Laden story is that Pakistan is now facing a polio outbreak because parents have an irrational fear of the vaccine.

(continued July 24)

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Snippets

I thought that Ross Perot, who recently died and is now largely forgotten, looked like Howdy Doody, but Howdy had a more engaging more personality. And sometimes I lie awake at night listening for that “giant sucking sound.”

If the 2016 election brought increased sales for Brave New World and 1984, will the arrest of Jeffrey Epstein do the same for the marvelous and deeply disturbing Lolita? Or for The Real Lolita: The Kidnapping of Sally Horner and the Novel that Scandalized the World by Sarah Weinman that chronicles the abduction of a young girl, an episode that mirrors and may have influenced Nabokov’s book?

I am Donald J. Trump.

I never admit a slump.

My cheeks are pink, my hair is sleek,

Of my brain, thou shalt not speak.

The handyman had come to look at a small project. I was wearing an anti-Trump shirt. He said that he liked it. I replied that I was careful where I wore it. He said that I should be because people got so angry nowadays. I realized that he had not absorbed all the writing on the shirt when he said that Trump had been sent from God. He had only limited times to do the job this week because of church obligations and volunteer work at a Christian radio station. He was an evangelical. And he was black.

I don’t understand many things. For example, I don’t understand many Americans’ fascination with British royalty.

A reason that I am not a conservative: I do not believe that wealth equates with moral worth.

My ears perked up when I heard that the podcast Planet Money was reporting from where I grew up, Sheboygan, Wisconsin. The story focused on how employees in a time of strong employment were gaining power. To illustrate its point, it discussed Kohler Company, which the podcast said was in Sheboygan, and interviewed one of its workers. I wanted to correct the report. As a native of Sheboygan, I never would have said that Kohler is in Sheboygan. It’s in the village of Kohler, which is in Sheboygan County, but not Sheboygan. Sheboygan and Kohler are separate places. The studio reporter asked the man in the field where the Kohler employee might go if the workers’ demands were not met by the company. He replied, “They could go to Sargento Cheese or Johnsonville Brats.” The studio guy sounded amazed, asking, “They are all in Sheboygan?” This Sheboygan native rebelled at the affirmative reply. Sargento is in Plymouth and Johnsonville Brats is in, hold your hat, Johnsonville. Both near Sheboygan, but not in Sheboygan. But then the field reporter said with a hint of smile in his voice something I had not known from my years there, “Sheboygan is a feast for the senses.” Even so, I am not planning a move back.

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Confessions of a Sometime Public Defender–The Question (concluded)

          I could know I was defending the guilty, not merely assume it, only if the clients told me they were guilty. That only happened a few times, and I felt no moral qualms even in those situations. For example, Mary was a hooker on Brooklyn’s Coney Island Avenue–not the high-rent avenue then for anyone, and certainly not for a prostitute. She would do just about anything for a bit of food and some drugs. An undercover cop approached her and asked if she knew where he could make a big drug buy. She didn’t, but she asked what was in it for her if she could find out. He said $50. This was the equivalent of five or ten tricks for her.

She located where to get the drugs, and when the undercover returned, she took him to a seller in Harlem. She left after pocketing five tens. The cop made the buy, and Mary was arrested for aiding the sale. She told me this. She was guilty. She was not offered a plea bargain. We went to trial.

If convicted, the sentencing law required that she get a life sentence with at least a fifteen to twenty-five year minimum. That meant that she would have to serve whatever minimum a sentencing judge imposed before she would be eligible for parole, and, of course, she could be imprisoned until she died. I did not think such punishment just. She did something illegal, but a person such as she, who was barely surviving, could hardly turn down $50, and for that $50, offered to her by the police, she would get a life sentence. She was convicted. She got life as was required. And I felt that it was an injustice. If, by some miracle, I had gotten an acquittal, I would have rejoiced.

          I did think about the consequences of one acquittal, however. I represented a man, Ron, on the illegal possession of a gun. He told me a story that had some plausibility but was not likely to be true. The trial went surprisingly well. From the evidence, I began to believe that he might be innocent, and to my surprise, he was acquitted.

A few months later he called me. He was in jail again. He was charged with rape. I wondered what I had done. Had my acquittal gotten a woman raped? He wanted me to represent him, but his case had not been assigned to me, and I said no. Later the attorney who represented him on that new charge told me that it was as phony a rape case as any he had ever seen. Ron was acquitted of the rape charge, too. He was apparently innocent.

This sequence bothered me. Most often after an acquittal, I had no further contact with the defendant. Ron’s situation made me wonder if I had the moral luxury of feeling good about an acquittal simply because normally I did know whether the person I had helped free went on to do bad things. Would I have more doubts about what I did if I always found out what happened after a client was acquitted?

On the other hand, Ron made me think that for one of the few times I had abandoned my defender ethic. I had brushed him off instead of defending him again because I did not want to confront the possibility that he had committed a rape for which I perhaps should have felt a responsibility.

          Almost always, however, I could do the work and do it without moral qualms. I learned that the trial system works better than many believe. Attorneys want to believe that their skills and tactics make adifference. Once in a while the attorney does have a huge effect, but generally the attorney, at best, can only be a little bit better than the evidence presented at trial. My experience and my scholarly work convince me that almost always the verdict follows the evidence. If there is strong evidence that a person is guilty, almost always a guilty verdict follows.

          But the real reason I could do the work is that even though I respect police work, I also fear the power the police have. The same for prosecutors and judges. That fear allowed me to be a defender. The poor and the outcast need someone to stand up for them against a powerful government and its representatives.

(To be continued sporadically)

Related Post: May 29, 2019.

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Confessions of a Sometime Public Defender–The Question

          “How can you defend the guilty?” This is The Question I have been asked many times. Sometimes my answers have been platitudinous: To function properly our legal system requires defense of all, guilty or innocent. Sometimes my answer has been facetious: A defender prefers representing the guilty. If the client is innocent and acquitted, it is merely the system working. If the client is guilty but found not guilty, it must mean that the defender is a really good attorney.

Sometimes I gave a third answer that was slightly less facetious: The defender wants to represent the guilty because there is a lot less pressure. It feels much worse to have an innocent client go to jail than a guilty one.

No matter what my answer has been about defending the guilty, the looks on the questioners’ faces never indicate that they are satisfied with the response. The Question, however, is one asked only by those outside the public defender business. We did not discuss it among ourselves, and I only occasionally reflected on The Question.

          There is no one answer to The Question because there are many different components to the public defender’s job. Defenders spend the overwhelming amount of their effort in the plea-bargaining process, not trials. The goal is to get a more favorable plea or sentence than would occur without the defender’s efforts. The defender knows that almost always the client is going to be punished. The issue is how and how much. I was like most defenders who know that the criminal justice system is awful in many ways. Our sentencing laws are often ludicrous; prisons are terrible places; prosecutors are arrogant; judges are often dim. It is (usually) easy in the plea process to try to help even the bad people in such a bad system.

          I did not romanticize those charged with crimes. I met many people who I thought should be punished. Even so, when I saw the system operate, I saw its many, many flaws, and it was seldom a moral challenge to try to help those caught up in it.

This was fueled by my anti-authoritarian nature. I believe in a strong government, but we must have checks on the government’s power. We must try to ensure that when the government exercises power, it is doing so properly. Danger lurks if we don’t. The government’s ability to fine, imprison, and even execute is among its most awesome powers. When, as happens so often in our criminal justice system, the government seeks to impose its will on the outcast and the poor, we need to have someone pushing back against the government. Defenders act in the deeply conservative traditions of our country by trying to check governmental power. I could defend not just because I was defending an individual but because I was fighting the government. And that also meant defending the guilty.

          The person asking The Question about defending the guilty, however, is not asking about plea bargaining. They are really asking, “How can you defend someone whom at trial you know to be guilty?” How can you work for an acquittal of someone who has committed a crime and very well may commit more crimes?

The questions seem to imply that this must be a common situation, but obtaining a not-guilty verdict for one who was guilty seldom occurred. Few who admitted their guilt to me went to trial. Mostly those who said they were guilty wanted to get the best plea bargain possible.

Clients going to trial almost always maintained their innocence. I did not simply accept what they said. Often the defendants who told me they did not commit the charged crime related stories that struck me as bullshit. If I had to make the decision, those guys were guilty. But they said they were not, and it was not my job to pass judgment on them. And every so often that farfetched, remarkable story had truth in it. They were entitled to have someone fight for them because even if all the indications were to the contrary, they might not be guilty. My duty was to present the best possible case for them, and let the jury decide.

(concluded July 17)

Related Post: May 29, 2019

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The Mind of a Tennis Player

I admire the players as I watch the Wimbledon tennis tournament. Of course, I admire their athletic ability, as I do top performers in other sports. They are faster, stronger, more coordinated, quicker than mere mortals, but I also think about how they are different in ways that I can’t see in their contests.

They have honed and maintained their skills in hours upon hours of practice. This includes repeating the same motions over and over. The normal body might rebel at this. We would get micro tears, muscle strains, or stress fractures. Day after day of typing can lead to carpal tunnel syndrome. The repetitive tasks on an assembly line can lead to joint or back problem. The athlete’s body, however, tolerates physical repetition or else the athletes would not be as skilled as they are.

Such practice, however, also requires a special kind of mind. Many athletes have regular practice sessions of four or more hours, and there would be no point in spending this time unless the athlete can concentrate on what they are doing during this time. I know that I cannot. I have practiced some of the sports I have played, but after fifteen minutes my attention begins to wander. My performance falls off, and if I continue, I begin ingraining worse habits than when I began. Good athletes not only have better athletic ability than I, they have minds that allow them to focus in ways I do not.

These body and mind attributes are there in all great athletes, but the nature of tennis means that its players must also have an additional mental attribute that many sports do not require.   Unlike in most sports, the tennis player does not get coaching during the match. Yes, I know that illegal coaching from the stands goes on, and that limited coaching is allowed in some tournaments, but the basic point remains. Tennis players almost always must decide whether or how to adjust tactics during a match without a coach’s help. Even in other individual sports this is rare. The boxer every two or three minutes hears from the trainer who also shouts instructions doing the round; golfers regularly talk with their caddies, who also help read the greens; the track athlete’s strategy is almost always set before the race begins. Tennis players in matches of one, two, three, or four hours must be able to make adjustments, decisions that they must make without outside help.

The solitary nature of tennis also means that when players hit a rough patch, lose their edge or focus–which often happens in a long, close match–they alone must find a way, if they are to be successful, to regain the lost form. The tennis player does not have what is available in team sports: teammates to buoy up the player or fill in for a while or up the level of their own play so that the player’s slough can be tolerated. The tennis player must do it alone.

I watch a tennis tournament, and I admire not only the players’ skill, reflexes, power, and grace, but also their remarkable mental agility and resilience.

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Snippets

The Wimbledon tennis tournament is played at the All England Lawn Tennis and Croquet Club. I am not a member. Is there a Partial England Tennis Club that would have me?

I am writing a book for my level of tennis: The Offensive Use of the Short Lob.

Executive privilege is incomprehensible.

Needed, but often reprehensible.

I recently shaved off the beard I had for the last three years. Some friends noticed and commented that I look younger. I don’t ask, “Than what?” Others see my face as changed but don’t know why and ask whether I got a haircut or new glasses. Some others ask if I have lost weight. I wish.

MY JOB IS

KEEPING FACES CLEAN

AND NOBODY KNOWS

DE STUBBLE

I’VE SEEN

BURMA-SHAVE                                                    

Many of us have many personal electronic gizmos—phones, tablets, watches, fitness and GPS devices—that need regular charging. Can’t they make them so the same charging cord could be used for all of them?

I heard a woman on her phone say, “He is self-aware of that.”

The op-ed headline asked, “How Should Christians have Sex?” The right answer is obvious: Missionary position.

Near the front step of the country house lay a dead, baby skunk. My mind reverted to old-world peasantry and wondered if this was some sort of message. If so, it failed. I neither knew what it meant nor who had sent it.

The crying, three-year-old girl said to her Dad, “I’d rather be invisible.”

A reason I am not a conservative: I am not inordinately afraid of or repulsed by people who do not appear to be just like me.

I am Donald J. Trump.

High I.Q I claim, but grump,

History’s not my forte.

Rebel’s had no airport?!