"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, December 17, 2016

Junk science in the courtroom and retaliation against experts who denounce it: the case of Dr. Squire, the denouncer of the Shaken Baby Syndrome, continued

Science in the courtroom has always been the issue of controversy.

Many famous and useful books were published denouncing the use of "junk" science in the courtroom, with resulting violations of people's constitutional rights - from life to liberty to custody of children to property.

Some of these books that I can truly recommend are

  • Science and Pseudoscience in Clinical Psychology, 2nd Edition - the book explains principles of scientific validity, methodology of analysis of validity of various psychological tests used by court experts, psychologists and psychiatrists - the book is extremely useful in cross-examination of experts in family court, they usually have no clue as to methods of proving scientific validity of tests they use in their evaluations and do not read scientific literature at all (disclosure: I used the 1st edition of this book in my work);

  •  Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony - an insight from forensic psychologists into suggestibility of children, with examples of how memories in children can be created, or how children, following suggestive, leading questions from adults, can seek to predict what the adults want from them and provide testimony adults seek, with examples of people's lives ruined by such testimony;

Even though the book comes with a hefty price-tag, it is cheaper to buy it and familiarize yourself with the types and ways junk science used in the courtroom, in order to be able to fight that junk science than to suffer a conviction or civil adjudication with loss of rights as a result of not being prepared to confront junk science in the courtroom.  I've read this book, successfully used it in my work opposing experts testifying for prosecution and social services and highly recommend it.

The book exposes the lack of neutrality and scientific basis in testimony of psychiatrists in court proceedings.  It is also very useful in cross-examination of such "experts":

I would also highly recommend, as a reference - and to run that reference against the "Science and Pseudoscience in Psychology" methodology these two books that I consider "antiheroes" and anti-scientific:

Handbook of Clinical Intervention in Sexual Child Abuse 

- a book of collection of "syndromes" and "factors" and "signs" of sexual abuse of a child that can "diagnose" and put into jail any parent of any child - and is actually very widely used by courtroom experts, it is considered the Bible of courtroom experts in psychology testifying for prosecution in child sexual abuse proceedings.  While I am mindful that child sexual abuse does occur and is a heinous crime, I am also well aware, as a matter of experience as an attorney representing parents accused of such conduct, that such accusations can be easily made up - and Dr. Sgroi's "Handbook of Clinical Intervention" makes it possible to make a sex offender out of any parent with her "behavioral indicators" of sexual abuse located at pages 40-41 of the book, running from "overly compliant child" (the child listens to her parents "too much") to "acting out", arriving early at school, arriving late to school, good behavior at school, bad behavior at school, good grades, bad grades, inability to concentrate, not wanting to participate in certain school activities, inability to make friends, "pseudomature" behavior - whatever that is.

The other "anti-hero" book is DSM-V:

DSM-V "diagnoses" mental illnesses as a never-lose lottery - if "3 out of 5" or "4 out of 9" "indicators" fit - then you are sick.

Such "diagnostics" thus provide thousands, often millions or even a billion (as it is for bipolar disorder) symptom combinations - and it is very clear that those combination of symptoms were never subjected to rigorous scientific validity testing.

When people voluntarily come to a "doctor", a clinical psychologist and willingly believe the junk science diagnosing based on DSM-V, it is their own business. 

When such junk-science diagnosis is used to ruin people's lives through court proceedings, that is an entirely different matter.

How good and "scientific" "diagnoses" in DSM-V are is demonstrated by one example: pedophilia.

Pedophilia was initially included into DSM-V as a mental illness.  I have that book copy that lists it as a mental illness.

I bet it is no longer available and is a bibliographical rarity.

After pedophilia was listed in DMS-V as a mental illness, protests arose against such a diagnosis.

Imagine protests in the street against any other supposedly medical diagnosis - I protest against doctors diagnosing diabetes as a medical illness!

No, that is unimaginable.

Similarly, it should not be imaginable to protest against any mental illness - if diagnoses of it is based on scientific data.  And certainly, what constitutes a scientifically diagnosed illness should not be subject to amendments based on protests.

Well, pedophilia was taken out of DSM-V after protests - because, if that is an illness, how would you criminally prosecute a pedophile?

A medical diagnosis is not scientific when it is made - or not made - out of expedience to suit the needs of criminal prosecution or "public policy" needing to hold anybody accountable in any way, civil or criminal.

And that is applicable not only to the diagnosis of pedophilia - I just provided it as the strongest example that mental illnesses, diagnosed as a "never lose lottery" for treating psychologists and psychiatrists (4 out of 9, 3 out of 7 vague and over-broad "indicators" subjectively interpreted by the treating doctor to get you enrolled in expensive "therapy" sessions or put you on no less expensive drugs that a pharmaceutical company wines and dines the doctor to prescribe for you - and bingo! you are diagnosed and labeled for life).

Court testimony of experts is a big business, and, even though testifying expert are supposed to be neutral for purposes of giving testimony, and so claim under oath, they are usually hired and paid for their testimony by a party - and, even if they are court-appointed, they have a financial interest to testify the way the court wants them to testify (that is often very predictable, in child neglect and abuse proceedings, for example, courts are very pro-social services, and often judges in such courts are former social services prosecutors).

Often, experts testifying in criminal or family court, testify predominantly for prosecution - as the client with unlimited funds.

Naturally, such experts are interested to be hired and re-hired for such paid testimony - and testify the way prosecution wants them to testify, promoting claims that have no scientific validity, or the so-called "junk science"'.

"Junk science" "expert" testimony is a big problem in courts throughout the country.

On the one hand, prosecution often ask the court to give the jury a "TV show instruction" - and specifically weed out jurors who watch forensic science TV shows and expect a higher level of proof from prosecution's experts.  I was a witness how it was done in several criminal trials in Delaware County, New York, at the request of the then-District Attorney (and now the County Judge presiding over felony trials) Richard Northrup.

On the other hand, prosecution use their advantage in having unlimited funds, as opposed to the usually indigent defendants in criminal proceedings or civil child neglect and abuse proceedings - where state laws, out of expediency and fiscal considerations, restrict indigent defendants' funds and ability to apply for such funds to hire experts in opposition to prosecution's experts.

All of these tricks allow the prosecution to drum up convictions.

Yet, as the above books, and especially the "Science and Pseudoscience in Psychology" explains, a "syndrome", a term very often used by "junk science" experts in courtroom testimony, is not the same as a "differential diagnosis" excluding other causes of the injury, such as causes unrelated to fault of the defendant in the court proceedings.

And, not all experts are "whores" of the court or the party who hired them for money.

Some experts are honest and do testify based on scientific validity - or, in their expert opinion, lack of scientific validity of a certain syndrome.

One of such honest experts is Dr. Squire from Great Britain who recently lost her medical license because she did not accept as scientific the so-called Shaken Baby Syndrome, a junk science term that already resulted in many convictions and child abuse adjudications.

Fortunately for Dr. Squire, her license was revoked not for long, it was restored due to solidarity of Dr. Squire's colleagues who expressed indignation against such a retaliation for scientific opinion and in support of her.

Yet, recently Dr. Squire spoke at a gathering where she disclosed that she was actually reported by to licensing authorities by police officials who went to a Shaken Baby Syndrome convention and claimed there that the "syndrome" helped them maintain a high rate of convictions.

So, Dr. Squire's license revocation was to prevent the conviction rate for a certain police agency from dropping and had nothing to do with the actual science validity or invalidity of the Shaken Baby Syndrome, or guilt or innocence of those accused of harming children.

Actually, the junk science, also termed "voodoo science", was condemned in September of this year by the U.S. Department of Justice Report where the famous 9th Circuit judge Alex Kozinski participated in preparation of the report.

We live in interesting times.  I already wrote about Dr. Squire's case on my blog back in October and indicated that Dr. Squire's case demonstrates how a democracy can be turned into a theocracy - where a scientist is being persecuted by the government for "wrong beliefs".

Yet, being prosecuted for "wrong beliefs" because the police wants to maintain a certain level of wrongful convictions is a new low.

In the Middle Ages, it was the church that prevented the science from enlightening the masses - it was deemed heresy, and scientists were burnt at the stake for contradicting the church doctrine.

It was beneficial for the state to keep masses ignorant and illiterate - it is easier to rule over them this way.

Quite a different approach is needed when the majority of population of civilized countries have at least some formal education.

Blunt force in blocking people from information or prohibiting access to certain information of public concern (and validity of claims upon which people are criminally convicted is a matter of grave public concern) - is not an effective way of dealing with the public.

During the times of church domination, church law, overwhelming ignorance of the population, when burning people at the stake was a kind of a feast for the eye for the townsfolk at the town square, people were expected to hold and express blind faith in what can be subjected to experimentation and research and proven wrong.

And, of course, fighting heresies was positioned in Middle Ages by law enforcement as an important way to enforce church law.

Nowadays, the church's role in eradicating heresies is shifted and gladly undertaken by state secular licensing authorities - who are acting, supposedly, in order to protect the public.

Dr. Squire's license was taken because, as a scientist, she disagreed with and denounced with a theory that is not, in her view, supported by evidence.

And, the taking of Dr Squire's license was sought by police to keep their conviction rates high, bonuses paid, prison guards and prosecution receiving salary and bonuses, everybody happy - but the convicted innocents and children separated from families for no fault of parents.

Protecting the public from the truth, or at least from doubts in the truthfulness of what is considered "settled truths" - or a dogma - in any field of knowledge or human activity - is not the lawful person or justification of occupational licensing.

Not to mention that such persecution of a scientist based on the contents of her opinion violates internationally accepted freedom of speech principles.

Or, are we really turning into theocracies where we are supposed to believe certain dogmas and where any doubter, and especially a doubter whose voice has more weight because of the doubter's training and intellect - like in Dr Squire's case - are viciously beaten down by authorities?

Because if we do, we must prepare for a possibility of being thrown in jail on some or other "voodoo science" claim of a prosecution-paid "whore of the court".  Yes, I said the word.

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