About that "affluenza."

Those who think the rich teenager — who, driving drunk, killed 4 persons — should have gotten a harsher punishment than 10 years probation are focusing on the expert testimony he presented in his favor. A psychologist named G. Dick Miller testified that having grown up in affluence, "He never learned that sometimes you don’t get your way... He had the cars and he had the money. He had freedoms that no young man would be able to handle."

Miller used the term "affluenza" — a portmanteau of "affluence" and "influenza" — to refer to the young man's psychological deficit.

Affluenza, Miller acknowledged to CNN’s Anderson Cooper on Thursday, is “not a medical term.” The psychologist said that it means “You have too much and you don’t know how to distribute it.” At Cooper’s prompting, Miller acknowledged that the boy was “a spoiled brat.”

The affluenza claim rightfully strikes the most absurd note since Dan White’s infamous 1979 “Twinkie defense.” Psychologists have loosely used the term for years to describe the emotional pitfalls unique to children raised in affluent settings.

Of course, psychologists will have a lot to say about the afflictions of rich people, since rich people are more likely to have money to throw into long, luxurious sessions with psychologists. And rich people have the money to put on a strong defense in a criminal trial, replete with expert testimony framing their deficiencies in the most compellingly sympathetic form.

It's the judge's responsibility to give this testimony the weight it deserves. The problem here is not that rich people have money to dump into a strong defense in a criminal proceeding or that psychologists have coined a catchy/cutesy term for the woes of the rich. It is the judge — Texas State District Judge Jean Boyd — who is accountable for anything that went wrong in the case of Ethan Couch. And we don't know the weight she put on Miller's testimony or the notion of "affluenza."

I don't know how Boyd has treated other teenagers. Perhaps she's deeply informed about the deficiencies of the teenage brain and has shown mercy to a great many poor and working class teenagers and her sentencing of Couch is — within her record — a model of equal treatment of the rich and the poor. Maybe she knows the research that has led, for example, to articles like this — "Developmental Psychologist Says Teenagers Are Different" — in the New York Times.

That's a 2009 interview with Laurence Steinberg, "a developmental psychologist at Temple University in Philadelphia... one of the leading experts in the United States on adolescent behavior and adolescent brain biology." He says:

I’m not one of those people who labels adolescence as some sort of mental illness. Teenagers are not crazy. They’re different.

When it comes to crime, they are less responsible for their behavior than adults. And typically, in the law, we don’t punish people as much who are less responsible. We know from our lab that adolescents are more impulsive, thrill-seeking, drawn to the rewards of a risky decision than adults. They tend to not focus very much on costs. They are more easily coerced to do things they know are wrong. These factors, under the law, make people less responsible for criminal acts. The issue is: as a class, should we treat adolescents differently?

Asked whether the criminal justice system is "beginning to take these differences into account during sentencing," Steinberg says:

It’s been coming up in cases. I went to Washington in November to watch the oral arguments in two related cases before the Supreme Court that ask: should someone who committed a crime as a teen be subjected to life imprisonment without a chance for parole, ever?

With these cases, and another in 2005 where the high court threw out the death penalty for adolescents, I was scientific consultant to the American Psychological Association on its amicus brief. What we said in the death penalty case — and now — was that we have considerable evidence showing that adolescents are different from adults in ways that mitigate their criminal responsibility. But since 2005, there’s been a lot of new scientific evidence supporting this position.

At the link you can see links to the U.S. Supreme Court cases and descriptions of the neuroscience research about the teenage brain.

Speaking of brains: Let's try to think clearly about this case and the larger context. Don't get too distracted by the word "affluenza" — which no one said was an actual disease. Don't impulsively slot this into a class warfare template. Remember that the criminal defendant has a right to present the evidence in his favor. And the responsibility for sentencing lies squarely with the judge, but don't succumb to impulsive emotion as you judge the judge.

"A judge says an Army artillery officer linked by DNA to a string of sexual assaults on young girls..."

"... will be allowed to blame his twin brother at trial for attacks in two states."

Identical twin, of course.

"Crazy, I know, but I've actually been encouraging my son and his friends to use sexting — minus the lewd photos — to protect themselves..."

"... from being wrongly accused of rape. Because just as damning text messages and Facebook posts helped convict the high-schoolers in Steubenville of rape, technology can also be used to prove innocence."

Writes Roxanne Jones of ESPN. She's getting some attention for this, notably from Melissa McEwan, who's the type of blogger who, approaching this topic, begins with "[Content Note: Rape culture.]," which is — if I understand the culture of people who say "rape culture" —an enactment of the belief that encountering the topic of rape triggers a post-traumatic experience. Why doesn't the warning itself cause alarm? Isn't that the nature of warning? I suspect that the message isn't so much to the individuals who experience post-traumatic stress but to everyone: Never forget how deeply rape hurts.

After the warning, McEwan writes:

This is an actual fucking article authored by former EPSN [sic] vice president Roxanne Jones and printed at CNN in the year of our lord Jesus Jones two thousand and thirteen: "Young men, get a 'yes' text before sex."

Hey, why didn't we get a warning that you were going to use vulgar language and mock Jesus? Because McEwan is selective about which sensitivities to pet and which to kick in the ribs. It's a way to be funny, and fuck you if you don't laugh. Plus, some people like Jesus Jones. I kinda do. Saying "Jesus Jones" is like saying "Jiminy Christmas" or whatever cornball/hip substitution for "Jesus Christ" amuses you.

[Roxanne Jones] actually posits that a text message can verify consent, as though it's not possible to ask "Do you want to have sex with me?" followed by a series of any other conceivable questions that might elicit a yes, and then delete the interceding messages to make the "yes" look like a direct reply, irrespective of what the actual reply was.

But what Jones — Roxanne, not Jesus — wrote was: "Never have sex with a girl unless she's sent you a text that proves the sexual relationship is consensual beforehand." All McEwan is saying is that some efforts at concocting text evidence could be fake. But Jones said "a text that proves," without elaborating what text would be adequate proof. And McEwan doesn't seem to realize that deleted interceding messages would be recoverable, and the deletions themselves would be evidence against the accused. If Jones's idea is any good, it's because she's encouraging building relationships — however minimal — around sexual encounters and doing so in writing so you can defend yourself if you are falsely accused.

Give Jones some credit for saying "relationship." She also recommends "follow[ing] up any sexual encounter with a tasteful text message saying how you both enjoyed being with one another — even if you never plan on hooking up again." That's also about maintaining relationships. If your concern is avoiding accusations — false, true, or true-ishly false — don't do things that provoke the person who might go on the attack. Telling males to send some nice texts is interestingly similar to telling females not to go traipsing about in short skirts. It's don't-be-a-victim advice that some people find aggravatingly close to letting the victimizer off the hook.

But, of course, McEwan doesn't want to talk about the potential for false or false-ish accusations. She rails at Jones for talking about "stupid girls" who get drunk, throw themselves at young men, and then accuse them of rape:

Ms. Jones, I was not raped because I am stupid. I was raped because I had the misfortune of being in the presence of a rapist who was determined to rape me. Fuck off.

McEwan is an enforcer of the doctrinaire position that the issue of false accusations is such a distraction from the real problem that anyone who mentions it should be slammed down hard. Isn't it odd that extreme sensitivity about rape is expressed by telling another woman to "fuck off"? Why is fucking used as the metaphor for the expression of extreme hate? It sounds as though, in the mind of the person deploying the metaphor, fucking equals rape. It's a violent hateful action directed at the woman's body.

What is the true scope of this "rape culture" we are being warned about?

"When the government is so clearly failing to act on climate change... it's not surprising that the level of doubt about climate change has risen."

A cogent insight — by Green Party leader Natalie Bennett — into a UK poll that shows disbelief in climate change has spiked 400% in the last 8 years.

Obviously, Bennett means to shame the government for failing to act on climate change, but the failure to act is evidence that the people rationally take into account. Failure to act like it's an emergency is circumstantial evidence that there is no emergency, and it can be more persuasive than assertions that there is an emergency.

If someone says that house is on fire but doesn't leave the house, we tend to doubt that the house is on fire and wonder why that person is trying to get us to leave the house. For years, people have looked at the disconnect between Al Gore's lectures about our profligate burning of fossil fuel and seen his extravagant indulgence in power consumption. What going on?

And yet, while Al Gore could institute a rigorous green policy for himself, governments can't do drastic things without strong support from people. There's a terrible bind. The less government does, the more people think that nothing needs to be done. After a while, it's not only the failure to act as evidence of that the alarmist doesn't believe his own alarm. It's also the unfolding of reality without having taken precautions.

The Nevada Supreme Court upholds letting the defendant's rap song "Drug Deala" in as evidence in a murder trial.

Deyundrea Orlando Holmes wrote the song in jail and included lyrics about the details of the crime.

Part of the lyrics read, "I catching slipping at the club and jack you for your necklace." In gangsta parlance, "jacking" is slang for robbery. The lyrics also referenced, "I'm parking lot jacking, running through our pockets with uh ski mask on straight laughing."

Witnesses said [Kevin "Mo"] Nelson, a known drug dealer, was lured to the recording studio by Holmes and others on the pretense of a methamphetamine sale. Two men wearing ski masks and black clothes, later identified as Holmes and another man named Max Reed, accosted Nelson and his friend Kenny Clark, in the parking lot, according to court documents. During the struggle, Nelson's shirt and chain necklace were torn off and his pockets turned inside out....

The trial judge told the jury they could take these lyrics as "confessions, admissions or neither" and that they could not be used as evidence of the defendant's bad character or propensity to commit crimes. The court recognized rap lyrics may exaggerate or refer in the first person to things the rapper hasn't actually done, but that doesn't "exempt such writings from jury consideration where, as here, the lyrics describe details that mirror the crime charged."

How dumb was Holmes to write these lyrics in jail after he was arrested for murder? There's so much talk about how rappers are only playing characters and telling stories, but how obtuse do you need to be to imagine that you can immunize your confessions and admissions by putting them in rap form?

"The harrowing last pleas... were left in a lengthy voice mail on a friend’s phone..."

"... though prosecutors wouldn’t say whether she accidentally or purposely dialed the woman for help."

"If DNA sampling was actually like fingerprinting, [the Supreme Court's] argument might be convincing."

"But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system."

Harvard lawprof Noah Feldman says in "Court’s DNA Ruling Brings U.S. a Step Closer to 'Gattaca.'"

Like many, Feldman bestows admiration on the oft-scorned Scalia, who dissented. Feldman — despite the admiration — refers to the Scalia opinion as "his pungent dissent." I guess he wanted a less-common adjective to tack onto the word "dissent." What are the usual words? Stinging, sharp, pointed, biting...
But "pungent"? Doesn't that mean smelly? Feldman doesn't intend an insult, so, did he — shunning the trite — pick the wrong word? Actually, no. The (unlinkable) Oxford English Dictionary gives 6 meanings for the adjective "pungent," and they justify it as a compliment paid to a strong and well-written dissenting opinion:

1. Of pain: as if caused by a sharp point; piercing, stabbing; pricking....

2. Sharp; piercing; that has sharp points....

3. Forcefully or incisively expressed; (of argument, opinion, etc.) convincing, persuasive; sharply critical; (of censure) trenchant, biting....

1747   J. Edwards True Saints vi,   He expressed himself with that exact propriety and pertinency, in such significant, weighty, pungent expressions, with that decent appearance of sincerity.
1761   tr. C. Batteux Course Belles Lettres III. ii. v. 195   This poet is author of two satires universally esteemed the most pungent and best written in our language....
1876   Atlantic Monthly Aug. 202/2   He forced the unwilling esteem of men by his inflexible probity, his pungent logic, and his untiring industry.
1953   E. Jones Sigmund Freud I. viii. 168   She had a pungent tongue that contributed to a store of family epigrams....

4. a. Affecting the sense organs, esp. those of smell or taste, with a sharp, penetrating sensation; acrid, irritant; intensely flavoured, piquant....

5. Strongly or painfully affecting the feelings; intense, keen; painful, poignant. Now rare and literary....

6. Mentally stimulating or exciting; fascinating. Now rare....

I think the "smelly" connotation arose — a rose! — over the years as people used the word as a humorous euphemism, causing it to sound — at least to me — like a insult. I will reassign it to my mental list of noninsults.

In addition to troublesome words like "pungent," we're expected to get "Gattaca." That's a movie I put on my "watchlist" at Amazon after I saw that it was one of "The Top 5 Underrated Sci-Fi Movie Masterpieces."

"Dying man's eye blinks lead to Ohio murder verdict."

"Police interviewed the 35-year-old [victim David] Chandler after he was shot in the head and neck. He was only able to communicate with his eyes and died about two weeks later."

In the video, police had to repeat some questions when Chandler failed to respond or when the number of times he blinked appeared unclear. But Chandler blinked his eyes hard three times when police asked him if the photo of Woods was the photo of his shooter. He again blinked three times when they asked him if he was sure.

"'Expert' Reports in George Zimmerman Case Disclosed."

And TalkLeft is skeptical:

In the first report, despite the cries on the 911 call being deemed 'minimum-to-marginal material for identification purposes'... The report seems worthless. But even if one accepts it, since [Trayvon] Martin is excluded as the person screaming in three of the last four screams the logical conclusion is he wasn't the one crying out for help. The inference I take from this is that Martin may have yelled as he started hitting Zimmerman (the first two cries) but Zimmerman was the one crying out in the rest of the screams, which fits with him being punched in the nose and having his head slammed into the ground.

The second report is so absurd I'm wondering if it wasn't a joke. Parts of it are laugh-out-loud funny.

[A]pproximately one second after the start of CALL3, Mr. Zimmerman makes a seemingly religious proclamation, "These shall be." His speech is characterized by the low pitch and exaggerated pitch contour reminiscent of an evangelical preacher or carnival barker....

... The first state report is equivocal and a guesstimate. The second is a joke. The court should exclude these expert reports.

"You have a choice, a real choice... to roll with the tsunami of simplistic press and rhetoric..."

"... or the choice to stand against the power of that tsunami," said Jack McMahon, delivering the closing argument for Kermit Gosnell.

He also called the case "the most extraordinary hype and exaggeration in the history of the justice system," which is itself an extraordinary exaggeration.

It's hard to find a good account of what McMahon's argument really was. The NYT article gives a better hint at the legal substance of it:

The doctor’s defense lawyer, Jack J. McMahon, argued Monday that none of the remaining four cases had resulted in live births. Because the women were given injections of the drug digoxin, which causes “fetal demise,” Mr. McMahon argued, any postdelivery movements were involuntary spasms.

“Every single piece of scientific evidence in this case has shown stillbirth,” he said.

But Edward Cameron, an assistant district attorney, countered that testimony showed Dr. Gosnell did not always use digoxin and that it did not always work as intended. He quoted a former clinic worker with medical school training but no doctor’s license who testified that the drug “wasn’t giving the desired effect, the heart was always beating.” The prosecutor cited Pennsylvania law stating that if a baby delivered during an abortion “shows any sign of life, it’s considered alive — a heartbeat, breathing, a cry, movement.”

"In a surprise move, the defense in the Kermit Gosnell murder trial has rested without calling a single witness."

"The news comes on the heals of a clarification by Judge Jeffery P. Minehart about a mix-up in the dismissal of one of the murder charges yesterday."

It's all in the closing arguments. What would you argue if Gosnell were your client?

"Ricin Suspect Released from Jail: Was He Framed?"

"Two sources had earlier confirmed to Fox News that the FBI was looking into the possibility that he might have been framed as part of a grudge against him from someone in his neighborhood. A detention hearing for Paul Kevin Curtis that was scheduled for Tuesday has also been postponed."

ADDED: Let's look back to reports after the arrest, which came when people were very keyed up about murderers/terrorists on the loose after the Boston bombing:

If guilty, Curtis didn't cover his tracks very well. The arrest was based on information gathered "very early on," an official tells The New York Times. Presumably that information includes Curtis' use of his actual initials, KC, in the letter.

In fact, Curtis left enough breadcrumbs that a conservative website, Lady Liberty 1885, apparently fingered Curtis hours before the FBI announced his arrest, just through internet sleuthing. Curtis' Facebook posts include both the sign-off used in the ricin letters to Wicker and Obama — "This is KC and I approve this message" — and, according to Lady Liberty, the same quote: "To see a wrong and not expose it, is to become a silent partner to its continuance."

In retrospect, these clues work as evidence of framing. Take someone's Facebook catchphrases and put them in the letter....

"It was kind of hard to hear somebody say, 'Don't wash that wound. You might wash evidence away.'"

"Barrett cleaned shrapnel and nails from the wounds of some victims, side by side with law enforcement investigators who wanted to examine wounds for blast patterns. The investigator's request took him aback at first. 'I wasn't stopping to think, "What could be in this wound that could give him a lead?"'"

"Can you think of any reason why the neck was severed if that baby was not born alive?"

The prosecutor takes a different perspective on what Kermit Gosnell's lawyer had asked the medical examiner: "Based on the totality of the evidence... you cannot testify to anyone that this fetus was born alive?"

Also: "Former employees testified last week that Dr. Gosnell gave different explanations for why he kept up to 30 specimen jars containing fetal feet." What were the explanations? Some special reason for keeping the feet? Fetus feet... feetus... a sick pun?

IN THE COMMENTS: Palladian said:

Serial killers often like to keep "trophies" from their victims.

Ruth Anne Adams said:

You must know that a strong pro-life symbol is the thing called "Precious Feet." I bet Gosnell knew that, too. 

Dr Weevil said:

Yes, a lot of prolifers wear lapel or dress pins depicting the soles of unborn babies' feet. The point is that they are utterly and obviously human even when the baby is only a few months along. The friend of a friend I first saw wearing this said that they're actual size, too, which is part of the point. (I forget what number of weeks they were actual size for: I'm sure anyone interested could find out.)

I'm sure Ruth Anne is right: Gosnell kept the feet of his victims rather than some other body part as a sick sick joke aimed at prolifers.

The misinterpretation the Masters and Tiger Woods counted on?

Here's Thomas Boswell in the Washington Post:

On Friday, Tiger Woods made a gigantic blunder in applying the rules of golf, a brain cramp unworthy of a veteran pro.... But his subsequent mistake, taking an improper drop, ultimately cost him two shots and will haunt and may doom his chances to win this Masters.

But that’s all he did wrong.

Woods was so unaware of his gaffe that he gave three TV interviews in which he described in detail what he thought was a smart piece of strategy but was in reality a clear violation of a rule so simple many hackers grasp it.

In fact, Woods’s candid comments were the sole cause of his penalty.

It’s hard to believe that Woods, a tour pro for 17 years and a high-level competitor for more than 25, could not know or could even become temporarily confused about where you drop a ball after you hit into water.

But it is far harder to believe that Woods would deliberately break a rule, benefit by it, get away with it, sign his card for it, stand in fourth place in the Masters after 36 holes and then voluntarily tell the world every pertinent fact that could get him penalized or disqualified from the Masters. In fact, with current data, it is impossible to believe. Tiger just screwed up.

That's what Woods and the Masters officials want you to think, that Woods's self-incriminating statement is evidence that he didn't realize he'd done something wrong. But there's another interpretation: Woods made that statement to manufacture the evidence that is being interpreted to mean that he wasn't aware of the rule. He was playing dumb to avoid disqualification. Why assume dumb? I assume smart, especially since he had a lot of time to think about it, he has advisers, and it's in the interest of the Masters to keep him in the tournament for the ratings.

Here are Bill Pennington and Karen Crouse in the NYT, explaining how the officials arrived at the decision to regard this signing of an incorrect scorecard as "exceptional," thus avoiding disqualification:

A friend of a rules official saw something on television that looked improper, an illegal drop by Woods after his ball plunked into a pond at the 15th hole.

Masters officials would not reveal the identity of the texter, but the claim was brought before the Masters rules committee, which decided there was no violation. Then, about an hour later, Woods inadvertently implicated himself, saying that before dropping the ball he had taken two steps back, which was not permitted under the circumstances.

It's this time lapse that made me suspicious. The officials considered the matter, and said there was no violation, except that there was. An entire hour passes, after which Woods comes out and says something that sounds like he's casually recounting the set of events and he drops in there the statement that makes it clear he violated the rule. The fact that people like Boswell leap to read Woods's statement to mean that he didn't know he was signing an incorrect scorecard is why it could have been a brilliant scheme to plan exactly that statement in the hour that Woods had to think about how to handle the problem.

But you may ask: What about the fact the Masters rules committee had told him they'd seen no violation? I don't know what they told him. I only know what we were told, and I understand the motive for them to collude with Woods and his advisers and I know what happened an hour later.

Back to the NYT:

The process for Saturday’s ruling might have been especially delicate; removing Woods from the Masters could have ruined TV ratings and deprived the world’s top-ranked player of his best chance in several years to win his 15th major championship.

"Delicate" is a word. "Corrupt" is another.

But Masters officials said neither Woods’s popularity nor his pursuit of history was a factor. They had absolved him of wrongdoing on Friday; a day later, they said they could not impose the harsh penalty that goes with signing an incorrect scorecard — disqualification — because their earlier decision mitigated his culpability.

In my conspiracy theory, the officials knew on Friday that they needed to disqualify him, but they didn't want to lose him, and they created a time window that allowed Woods to do his innocent dumb guy performance, after which they'd assess the 2-stroke penalty and the sportswriters like Boswell — who also benefit, getting to write about Tiger and not all those other golfers few readers care about — spin the story the way they need it: Somehow the well-seasoned Woods forgot a basic rule of golf because there's no way he'd describe doing exactly what we can see him do on the video unless he thought there was nothing wrong with it.

I don't know what went on behind the scenes. I'm just saying those who hear Woods's statement and think it can only mean one thing are plainly wrong. Think of the motives and think of that 1-hour time gap. There is a lot of money at stake here, and there's a concurrence of interests between the golf authorities and Woods.

ADDED: "Even if they told me I could play, I would slam my trunk and be on my way up the road."

George Zimmerman opts out of "stand your ground" hearing.

Why? His lawyer claims there's too much time pressure preparing for the jury trial, but there must be a better reason.

University of Florida law professor Bob Dekle [thinks it's likely] that [Zimmerman's lawyer] O'Mara doesn't want to go through a bench mini-trial and possibly tip off the prosecution about its strategy should the "stand your ground" plea fail.
"If you're not 100 percent sure you're going to win the 'stand your ground' hearing, you just end up telling the state what your defense is and you've got nothing with which to surprise the state at trial," says Professor Dekle. "What you want to do at trial is catch the state with their britches down."

Several new developments suggest that Zimmerman's defense attorneys are having some success finding information that could raise doubts among jurors about the state's version of events. For one, the defense has been digging furiously, with the judge's permission, into Trayvon's social media history, which may present a more complex, edgier picture of the youth.

Also on Tuesday, a key witness for the prosecution was caught in a second apparent lie amid probing by the defense. A woman who says she was on the phone with Trayvon as Zimmerman pursued him originally gave her age as 16, though she was really 18. And she also said she missed Trayvon's funeral because of a hospital stay, which wasn't true.

And here's Jeralynn Merritt, noting that at the "stand your ground" hearing, Zimmerman would have the burden of proof (by a preponderance of the evidence), but at the trial, the prosecution has the burden of proof beyond a reasonable doubt. Even though the defendant could lose at the "stand your ground" hearing and still go on to win at trial because of these different burdens, you can see why you might avoid the pre-trial hearing unless you were quite sure you'd win. And:

O'Mara can still file a motion to dismiss based on ["stand your ground"] immunity... at the close of the state's evidence and renew it at the close of his case, before it goes to the jury. The judge would determine the motion based on the evidence presented at trial. If denied, O'Mara can still argue self-defense, including self-defense based on the immunity/stand your ground statute, to the jury....

If the jury rejects self-defense, including that based on the immunity statute, Zimmerman can argue on appeal that the court erred in not dismissing the case based on the immunity statute before it went to the jury....

Much more at that second link.

"New York sex workers said to be avoiding condoms as they’re used more frequently as evidence of prostitution."

""Unfortunately, I can only carry one condom.... I can't carry more, because if I have bad luck and the police catch me, they could put me in jail because police can use them as proof."