Category: crime and punishment

Atlantic article criticizes due process as being harmful and full of lies

February 10, 2020 • 11:00 am

I came upon this article when someone sent me the tweet below (I don’t know who Cathy Young is). The caption is pretty snarky, but the article in The Atlantic  by Megan Garber, which you can access by clicking on the link or the bottom part of the tweet, justifies the snark. It’s really a pretty dire article that criticizes due process because in some cases (read: accusations of sexual misconduct), “due process” involves making the witnesses uncomfortable or upset, and causing harm. And it can’t guarantee justice.

The article is about how the defense lawyers for Harvey Weinstein have been going pretty strongly after the witnesses, sometimes portraying them as forgetful, imperfect or possibly making stuff up. Further, some of the stuff that has come out, whether it be Weinstein’s misshapen genitals or the tampon of one of his alleged victims, is ugly.  I’m not quite sure what the “lies” of due process are (the words “lie” or “lies” occur only in the headline), but it seems to be that, as the headline says, due process seems reasonable and straightforward, but can be very ugly, and not produce the result that we consider “just”. But those aren’t really “lies”.

Garber’s point, as far as she has a point, seems to be that due process is overrated because of the difficulties it creates for witnesses in cases like the Weinstein trial. She doesn’t go so far as to argue that the rules of evidence should be suspended or weakened, but that’s what I glean from her article. Here are some excerpts. (The emphasis is mine.)

Donald Trump, defending a staffer who had been accused of domestic violence, joined the chorus: “Is there no such thing any longer as Due Process?”

Of course there is. And it has been on display in Weinstein’s long-awaited criminal trial. That trial has been, even as blunt-force legal proceedings go, particularly ugly. The women who have accused him of rape and other forms of assault have told graphic and harrowing stories, often tearfully, on the stand. (Weinstein has denied all charges of nonconsensual sexual encounters.) They have spoken of pleas ignored; of pants ripped off; of a tampon forcibly removed; of pain; of degradation; of threats; of fear. Weinstein, too, has endured his own humiliations as the women have testified: Jessica Mann, a former aspiring actor who alleges that Weinstein raped her, said last week that Weinstein has genital deformities. As evidence of her claim, a picture of Weinstein—naked—was displayed to the jury.

No person shall be deprived “of life, liberty, or property, without due process of law.” Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.  
There’s no doubt that it’s hard for a witness, particularly one who might have been raped, to face Weinstein in court and recount what happened. But that’s not a “perpetuation of harm”, it’s a way to ultimately prevent the greater harm of sexual predators like Weinstein from continuing to operate.  Garber further recounts sharp defense questioning of prosecution witnesses confirming the stories of Anabella Sciorra, who claims she was raped by Weinstein in the early 1990s.

Garber then reaches her conclusion, referring to an interview of one of Weinstein’s attorneys, Donna Rotunno, by New York Times reporter Megan Twohey (my emphasis):

The structure of the criminal trial, when it deals with the intimacies of sex, means that testifying—the ostensibly straightforward act of telling one’s story—can require extreme bravery. “There is absolutely no risk for a woman to come forward now and make a claim. Zero,” Rotunno told Twohey. Here, however, is one of the many possible counterarguments: “He held me down on the bed and he forced himself on me orally,” Haleyi told the jury. “I was on my period. I had a tampon in there. I was mortified.” Here is another: Mann sobbed as she told the court that Weinstein had raped her. She hyperventilated. When she was given a break, she was heard screaming from a back room. She had spent several hours testifying. “Defense lawyers again portrayed her as an opportunistic manipulator who had a long romantic relationship with the producer,” is how a Times subheading summed up part of the time she’d spent on the stand.

This is due process at work. Whether the process will result in justice is a notably different matter. The prosecution rested its case on Thursday, after two weeks of testimony, with weeks’ worth of rebuttal from the defense likely to follow. As Weinstein was leaving court last Friday afternoon, after Mann’s testimony about his body, a reporter asked for his reaction to the proceedings. This was Weinstein’s reply: “Wait to see what the lawyers say about her.”

In my opinion, Weinstein is guilty, as there is too much concordant evidence pointing to his guilt. But he deserves a fair trial. And a fair trial means, if it means anything, that the prosecution must prove its case beyond a reasonable doubt. And that, in turn, requires a vigorous defense, in which defense attorneys use every legal opening they can to cast doubt on the prosecution’s story, and on their witnesses. And there are rules that must be followed; when they’re not, the judge says “Objection sustained.” Yes, it’s grueling, and no witness escapes unscathed. 

Yes, it can be brutal, and victims may get retraumatized. But what is the alternative? If due process doesn’t “result in justice”—which seems to be one of the other lies that Garber refers to—what is her alternative? I don’t see any, not so long as guilt, with its sentence in this case a lifetime behind bars, must be proved beyond reasonable doubt. Does Garber want to use the Title IX standards of “preponderance of evidence” instead? I don’t think any of us would support such a system.

When I was an expert witness for the defense in DNA cases, which often involved rape and murder, I was at first horrified at how the prosecution attorneys would go after me, questioning my credentials (“Really, Dr. Coyne—you work on flies. How can you have any expertise in human genetics?”), and probing for any weakness they could, even stuff that I thought was unfair (“You can’t simply add the probability of lab error to the probability of a random match. That’s apples and oranges!”). But later I came to realize that this kind of probing and jousting, particularly on the side of the defense (I worked for overburdened and underpaid public defenders who were amazingly dedicated), is necessary to air every possible weakness in a case.

Again, if Garber has an alternative to due process that causes less “harm,” I’d like to hear what it is. No process can guarantee justice, but due process is, at present, the best we’ve got.

The American media continues to tout the powers of psychics

January 26, 2020 • 9:00 am

Here’s a story published in both the State Journal of Frankfort, Kentucky (click on screenshot below) and Fox News. Note the headline: “Psychics were right. . ”

The story: Haylee Marie Martin, a 17-year-old, went missing on January 12 and her absence was reported to the police the next day. Baffled, the sheriff consulted psychics who predicted (sort of) where she would be found. In fact, she was found in the next county along with a 21-year-old woman when both were trying to break into the house of the woman’s boyfriend’s.  The police took them into custody on Friday. The pair won’t face charges, but the police may charge several adults who, they said, hid the girl for two weeks.

Now what about those psychics?

From the State Journal:

The sheriff said at 6 p.m. Thursday he joined a group of psychics from the Richmond area gathered at the Salyers Lane residence where Haylee was last seen on Jan. 12 or 13. Although he was admittedly skeptical at first, Quire said he “did not want to leave any stone unturned.”

“It’s hard to believe, but most (of the psychics) agreed that we would find Haylee in a neighboring county by morning,” he said. “And we did.”

Fox news gave the same report. (I wonder if they paid these psychics. If that’s the case, taxpayer money is funding woo.) Note that most of the psychics reported that she would be found in a neighboring county (correct) the day after the consultation.  Some of them apparently had other predictions, and were wrong.

This kind of reporting, of course, doesn’t mention the disparity of predictions, but it (and the headlines) serve to validate the widespread American view that psychics are accurate. But most missing people turn up nearby, so that’s not a stretch, and, most important, there’s no control here: how often are psychics consulted who turn out to be wrong? I can’t be arsed to do a comprehensive search given the palpable falsity of the idea that psychics are accurate, but a quick Google showed four cases in which psychics were brought into crime cases and gave wrong predictions.  These are “controls”, but of course a proper control would be to compare the accuracy of psychics in such cases compared with non-psychics who have comparable knowledge of the crime as conveyed by the police. I know of no such studies.

That doesn’t mean, of course, that we should remain agnostic about psychics, granting them the possibility that they could be right, for they make guesses in other situations as well, and those guesses are wrong. James Randi’s “One Million Dollar Paranormal Challenge” was explicitly designed to test psychic abilities, but nobody has ever performed successfully (Randi is a magician well equipped to suss out tricks). You can read about a failure in 2009 here. Further, there’s no known physical mechanism whereby psychic abilities could be manifested. Now that doesn’t settle the case, as there may be unknown mechanisms. But physicist Sean Carroll has also written about how parapsychological phenomena are inconsistent with the laws of physics.

Still, Americans continue to be credulous. According to The Conversation, “there are still many people who firmly believe in the power of psychic ability. According to a US Gallup survey, for example, more than one-quarter of people believe humans have psychic abilities – such as telepathy and clairvoyance.” That study, done in 2005, also reports that nearly three-quarters of Americans believe in some paranormal phenomena. 73% of them, for example, subscribed to at least one of these claims:

To me this is a remarkable (and distressing) result, especially since scientific tests of some of these claims have never turned up any support. (See here, for example, on astrology.) But of course the same motivation behind many people’s belief in religion—faith that provides comfort, also lies behind belief in psychics. And one can’t argue that these people are harmless, because many of them take lots of money from their gullible clients. (In the clip below, John Oliver calls it a “2.2-billion-dollar industry”.)

There’s no need to further belabor the scams perpetrated by psychics, as many skeptics and their websites have debunked these claims. Let’s just watch a 21-minute clip in which John Oliver takes a few psychics apart with his characteristic wit. There are some good clips here of psychics “in action” (or rather, in inaction).  See the one starting at 16:05 for a particularly egregious case.

 

 

Photos of readers

December 31, 2019 • 2:00 pm

Well, today we actually have a drawing of a reader, Ken Kukec. And there’s a reason why it’s a drawing:

Federal courts don’t allow cameras in the courtroom, but here’s a sketch of yours truly with a client readers may recognize. My brother was in Washington, DC, recently and discovered it in the Library of Congress.
The caption to the sketch overstates the situation a bit by referring to me as “his attorney.” Lead counsel was my mentor, Albert Krieger (also pictured in the sketch). I was along for the ride as second chair.
Unlike Dorian Gray, I continue to age while the image in the sketch remains the same.
Here’s the drawing, which is in the collection of the U.S. Library of Congress with the caption below (I’ve bolded Ken’s appearance):

The Dapper Don on Trial:

Flamboyant crime boss John Gotti, “the Dapper Don,” faced trial on several occasions. In 1992 he appeared in United States v. John Gotti et al., in the U.S. District Court in Brooklyn. Gotti, sporting a red tie and handkerchief, sits next to his attorney, Ken Kukec. Defense attorney Albert Krieger hands Anthony M. Cardinale, another defense attorney, papers, while Murray Appleman, the sole witness for the defense, testifies. Judge I. Leo Glasser leans forward to listen. When his second in command, Salvatore “The Bull” Gravano, turned on him and became a government witness, Gotti was convicted on charges of murder, racketeering, obstruction of justice, illegal gambling, tax evasion and loan sharking. He died of throat cancer in 2002, while serving a life sentence in prison in Springfield, Missouri.

I asked Ken if he defended a lot of “made men,” and he responded this way:
A few over the years, including a couple from the Chicago “Outfit,” old-timers who grew up in “the Patch.” But none more high-profile than Gotti. I don’t think anyone in the modern era was.
You can read more about Gotti here.

Give convicted felons the right to vote

December 27, 2019 • 11:00 am

In most states of the Union, convicted felons have their right to vote abridged in one way or another. (In 1974 the Supreme Court affirmed that the voting rights of convicted felons was a matter for states to decide.) The figure below shows the restrictions in place at present (only Maine and Vermons allow convicted felons to vote freely—even in prison). In many states you can regain your voting status after you’re out of jail, but often it’s not easy, and you have to wait until you’re off probation and through with your parole.

Here’s a summary of the situation from PrisonFellowship.org:

There is great variety in how states approach restricting voting rights based on criminal history. However, nearly every state restricts a person’s right to vote due to conviction for a felony crime. Only two states, Maine and Vermont have no restrictions on voting rights and allow individuals to vote in prison. The other thirty-eight states, along with the District of Columbia, temporarily suspend the right to vote for those convicted of a felony crime during the period of their sentence. In some states, the voting rights of these individuals are automatically restored when their sentence is completed. In other states, the legislatures have chosen to require waiting periods or an application before a person’s voting rights may be restored. Only three states, Kentucky, Virginia, and Iowa, permanently revoke a person’s right to vote based on a felony conviction. Of those states, Virginia recently acted to extend the opportunity for clemency to those with a felony conviction who meet certain criteria.

In states that allow restoration of voting rights, the process by which a person has their voting rights restored can be complex. The procedure of registering to vote after disenfranchisement generally includes lengthy paperwork to be correctly filed through state agencies, sometimes including unintended waiting periods even for automatic restoration as a result of insufficient resources in state agencies.

This removal of voting rights in the U.S. is called “felony disenfranchisement”. Although only Maine and Vermont allow imprisoned people to vote regardless of their crime, that is the standard practice in many European countries, including Croatia, the Czech Republic, Denmark, Finland, Germany, Ireland, Latvia, Lithuania, Montenegro, North Macedonia, Serbia, Spain, Sweden, Switzerland, and Ukraine.

I see no rationale for disenfranchisement of anyone convicted of a crime, however horrible or regardless of whether they’re in prison. The easiest decision is for the three states that remove your right to vote for a lifetime if you’re a convicted felon—even after release. But if you’ve “paid your debt to society,” as they say, why should you be deprived of civil rights, including the important right to determine who governs you? (Some states also restrict your ability to be on a jury.) Or, if you’re on probation or parole, should you really not be able to vote? One might say that you’re still under legal sanction, but if you can hold a job, and you’re still a citizen, why shouldn’t you be able to vote? After all, you still must live under the laws, you’re in a democracy, and on what grounds are you to be deprived of choosing those responsible for making laws?

And, for that matter, why shouldn’t you be able to vote while in prison? You are still an American citizen (unless you’re an imprisoned foreign national), and voting is a civil right for Americans.

Depriving prisoners, convicts, or parolees of that right serves no function I can see: it’s not a deterrent, it doesn’t help reform the convict (who, after all, reforms so they can get to vote?), and it doesn’t further sequester them away from the rest of society. It seems to me, then, that deprivation of voting is purely retributive punishment, and serves no societal function nor helps the convicted in any way. It is a way of injuring somebody for something they couldn’t help. As a pure determinist, I still see that sequestration, reformation, and deterrence are valid reasons to punish people, often by incarcerating them, but I see no justification for retribution in a humane and rational society.

 

David Gibson of Gibson’s Bakery died

December 8, 2019 • 12:30 pm

If you followed the fracas between Gibson’s Bakery in Oberlin, Ohio, and Oberlin College, as many of us did (see here), you’ll know that one of the plaintiffs in the civil suit against the College, David Gibson, had cancer. It turns out that it was pancreatic cancer, an almost invariably fatal disease, and Gibson died of it on November 16. He was 65.

Daniel McGraw, who covered the crime (shoplifting by students), the defamation suit (Gibson’s claimed that Oberlin College inflamed the students and tarred the bakery as racist), and the outcome (a fine of $31.5 million against the College) for the site Legal Insurrection (LI), has written a longish memorial piece that reprises the suit and Gibson’s attempts to get justice. It’s at Quillette, and you can read it by clicking the screenshot below.

Although LI is a conservative site, I’ve always thought that its coverage of the issue was fair, and no other venue covered the Oberlin affair as thoroughly.

I won’t reprise the facts of the case, or what I’ve written already. I’ll just note a few things from McGraw’s piece that I didn’t know, or didn’t remember.  I’ve indented the quotes from his article:

1.) The verdict against the College is unlikely to be overturned. 

The college was accused of providing malicious support to students circulating defamatory claims that Gibson and his family were racists. These claims, the jury would subsequently conclude, were baseless. The prestigious liberal arts college was found guilty of libel, and ordered to pay close to $50 million in damages. (Both the verdict and the award are being appealed, but while the damages may be reduced, depending on what state caps permit, legal experts say the reversal of a civil case like this one is unlikely under Ohio law.)

Good. I want Oberlin to get hit hard in the pocketbook, so that that school will think twice before siding with its students in a losing cause. There was no evidence that Gibson’s was a racist establishment, but the College tried to perpetuate that myth, perhaps to look good in the eyes of its students (see point 4 below).  You can’t just go tarring people as “racists” when there’s no evidence of it.

2.) David Gibson made a settlement offer that didn’t involve money, but only an apology.  Oberlin rejected it.

For Gibson and his family, meanwhile, the verdict provided hard-won vindication but also bemusement. “All Oberlin had to do,” Gibson told me in September, “was to say we weren’t racists and there would have been no trial. What I didn’t understand is that they didn’t have the civility to do so. The basic civility we all try to live by. They didn’t seem to understand that.”

That mistake cost them over 35 million dollars.

3.) The College insists that the case is about the students’ free speech, not defamation of Gibson’s by Oberlin College. Here’s an editorial in the Columbus Dispatch by the College’s President, Carmen Ambar, that appeared in July (click on screenshot; you may have to register for free):

The piece by Ambar is disingenuous; the case was never about free speech but she’s waving about the Constitution and the mantle of victimhood (“they’re suppressing us!”) in an attempt to distract attention from what the verdict really dealt with, and what the judge instructed the jurors:

Academics who never set foot in the courtroom insist that the case was about the right of students to freedom of speech, even though the judge had explicitly declared such arguments irrelevant. The trial was intended to determine whether or not the college had “aided and abetted” the dissemination of false and defamatory claims made about Gibson’s bakery by Oberlin students, and the jury was asked to decide if the school had promoted accusations it knew to be untrue.

. . . This past fall, Gibson told me that the school president’s interventions in this vein were what bothered him most. “We have never said that students don’t have the right to free speech,” he said. “Our family has had this business on the town square for more than 100 years and we have seen many protests. We have helped students through the years, even letting them use our tables and chairs on the sidewalk during this protest. But the school couldn’t even do a simple and basic thing by saying in some way that we aren’t racist. Because we weren’t and we aren’t.”

The Gibsons have always come across to me as hard-working and decent folks who simply wanted to wash away the stain that Oberlin College put on their reputation. The whole issue could have been settled had Oberlin acceded to their request for an apology, along with a statement that they weren’t racists (police records of the race of shoplifters showed that the bakery didn’t discriminate against blacks). But Oberlin was recalcitrant, perhaps, as we see in the next point, to launder its own reputation.

4.) Oberlin might have used the case to deflect student charges that the College was itself racist. 

. . . David Gibson testified that the school had offered to allow the bakery’s food back in the university cafeteria on two conditions: that Gibson’s drop the shoplifting charges, and agree to report all future instances of theft by students to the university and not the police. Gibson refused. “They didn’t want to move forward until we agreed to special treatment for students shoplifting,” he told the jury. “But I kept telling them that we have to be consistent and call the police no matter who is stealing.” Only later did he realize that the school administrators might be using the controversy to launder their own reputations. “[The school administration] had been accused of being racists by students in the previous year,” he testified, “and I think they used us to deflect from that problem they had. I believe they were using us as a target so that their racial problems with their students would go away.”

In December 2015, Oberlin College’s black student union had published a 14-page, 58-point list of demands, in which they accused the university of “anti-blackness” following four separate race-based controversies in a single year. At the end of May, the New Yorker published a long essay about Oberlin College entitled “The Big Uneasy,” examining unrest at the college, in which one student interviewee complained, “I literally am so tired of learning about Marx, when he did not include race in his discussion of the market!” When Donald Trump defeated Hillary Clinton on November 8, 2016, the students thought their world was ending. “Part of the inconceivable quality of the election is, I don’t know a Trump voter personally, and I can’t imagine someone voting for Trump,” an Oberlin College senior told the campus newspaper. “I don’t know how to reach across that line. I don’t even know who they are.”

Finally, I emphasize again that the good guys in this issue are the Gibsons and the bad guys are the administrators of Oberlin College. (I’ll excuse the students because they’re young.) If you don’t think that, just read this:

During the prosecution of the three shoplifters, Oberlin’s attorney attempted to get the charges reduced from felonies to misdemeanors, a deal that required Gibson’s cooperation. Gibson was asked if he would meet with the shoplifters and speak to them about the larger issue of shoplifting and how it affects small businesses and their customers. Sure, Gibson replied, they can come to the store and I’ll show them how we work. In the end this arrangement fell through amid legal wrangling, but the students were eventually charged with misdemeanors anyway. In September, I asked Gibson why he had agreed to reduce the charges. “I’ve done this before and feel the same way as I always have,” he told me. “A felony can follow them further down the road, and I don’t want anyone to have to deal with that because of something stupid they did in college.”

That is a man with empathy and compassion, but a man blindsided by the fulminating wokeness of Oberlin College’s administrators. As McGraw reports, among the 300 mourners at David Gibson’s funeral, there were only a handful of people from Oberlin—all retired professors. The College didn’t even have the decency to send a representative.

The issue of transgender prisoners: Where do you place them?

October 16, 2019 • 10:00 am

Like all liberals, I favor equal treatment for transgender people, including using the pronouns that they choose for themselves. Previously, though, I’ve drawn the line at sports, in which transgender women, some of whom have undergone neither surgery nor hormone replacement, are allowed in some places to compete with biological women. Given the greater strength and heavier musculature of biological males, this bestows on them what I see as an unfair advantage when competing with women born as women. Even hormone replacement, it seems, can’t provide a level playing field, and so there’s an issue: what do we do to allow transgender athletes to compete but retain fairness for women athletes?

Well, one thing we shouldn’t do is to allow purely biological males who identify as females—without having undergone either surgery or hormone replacement—to compete with biological females. This is the current rule in Connecticut, which has allowed biological males to clean up in women’s track and field. As I wrote in February,

I’ve written about this before (see here and here), and, as always, I remain conflicted. Clearly transgender people should be able to participate in athletics, but what are good criteria for competing in “men’s” and “women’s” events?  Should there be a third category: “transgender women’s sports”? I don’t know.  But I do believe that simple self-identification that conflicts with biological sex is not sufficient to allow you to compete in a gendered event. In 2018 in a Connecticut state high school track meet, both first and second places in the women’s 100-meter dash went to transgender women (see the video here). As I wrote at the time:

 In Connecticut, where first and second place went to transgender women in the race above, “self identification” is the rule, so you can be a fully biological male, not having transitioned in any way, and enter a race if you say you identify as a women. Other states are more stringent: Texas, for instance, insists that you compete as the gender given on your birth certificate.

Both seem problematic.  Surely there is something unfair about the above: in which transgender women who are physically men, by virtue of greater strength, clean up in a women’s athletic event by “self-identifying” as women. That may well be true and not just a ploy, but the problem is not psychology but physicality. A liberal response would be “the civil rights of gender self-identification outweighs the disappointment of non-transgender losers.” But that answer doesn’t satisfy me. The unfairness is deep and pervasive, and “self-identification” seems a dubious solution.

As for putting limits on hormone titers, as the Olympics do, that too may not achieve “fairness”, at least to many, as the hormone limits are several standard deviations above that of biological females, and do not eliminate the physical advantages of maleness before a male transitions.  I have no solution, but as more people change their gender, the problem will increase. I suggested above a third category for competition, “transgender athletes”, but that seems unwieldy.

Now an article in Quillette (click on screenshot below) raises another issue of differential treatment for transgender people, again most often transgender women.

As Halley reports, both the UK and Canada have had difficulties with transgender women prisoners, and this may soon be happening in the U.S.. The problems are of two types. First, biological men who haven’t had surgery or hormone therapy, and who assert that they are women, can, in some places, request and be placed into women’s prisons. This has happened in Ireland (the individual was “a fully intact male sex offender”), in the UK, in Canada, while the California Senate recently voted that “self-identification”, independent of any medical transitioning, is sufficient to warrant placement in a prison with individuals of another sex.

Second, even with some surgery, like castration, transgender women, often in prison for sex offenses, have harassed and assaulted biologically female inmates. Here are a few stories:

Matthew Harks recently was released from the Grand Valley Institution for Women in Ontario. He is a serial pedophile who has been convicted of three sexual assaults against girls under the age of 8. He has claimed to have abused 60 girls and to have committed 200 offenses. A 2006 psychiatric assessment of Harks maintained that he has an “all-encompassing preoccupation with sexually abusing underage girls.” Like Laboucan, Harks has undergone SRS [sex reassignment surgery], but this has not stopped him from facing multiple accusations of harassment and assault while incarcerated in a women’s prison. In 2016, the Calgary Herald reported that Harks was potentially facing charges for “three alleged offences that took place recently while [Harks] was in custody: assault, unlawful confinement and sexual assault.” The Vancouver Sun has reported that Harks has assaulted two female inmates who were “childlike in appearance.”

Here’s the case of Karen White, whose transitioning appears to have consisted solely of self identification as well as wearing makeup, a wig and false breasts. There was neither surgery nor hormone therapy.

The activism of these British women brought the case of Karen White to my attention. White is a male rapist who was admitted into a women’s prison in Wakefield, England in 2017. White has been convicted of sexually assaulting two female inmates during his three months of incarceration in Wakefield. He was subsequently sent to a male prison.

I’m baffled by a mentality that would put a male rapist without any medical transitioning procedures into a women’s prison.

Here’s one more, a prisoner who did undergo SRS:

Dangerous offender Adam Laboucan is currently housed in the Fraser Valley Institution for Women in British Columbia. To receive the designation of “dangerous offender” under Canadian law, there must be evidence that the offender has a pattern of brutally violent behavior that is overwhelmingly likely to persist. Laboucan was convicted of sexually assaulting a 3-month old baby, yet he is now living in a women’s prison that participates in the Institutional Mother-Child Program, which is run by the federal government “to foster positive relationships between federally incarcerated women and their children by providing a supportive environment that promotes stability and continuity for the mother-child relationship.” One feature of the program is that it allows young children to live with their incarcerated mothers in detached buildings referred to as “cottages.”

A CBC report on a 2010 decision to deny parole to Laboucan relays that he had threatened to kill a female guard, and that he had confessed to murdering a 3-year old child at the age of 11. (The Province reported that Laboucan also was denied parole in 2018. He had appealed this decision citing bias on behalf of the Parole Board but this was unsuccessful.)

Laboucan is not in a women’s prison as a result of Bill C-16 (which was cited to justify a policy of self-ID). He has been accommodated because, while incarcerated, he has undergone SRS. The Correctional Service of Canada (CSC) has allowed men who have had this procedure to apply for transfers to women’s prisons since 2001. This policy stemmed from a Canadian Human Rights Tribunal ruling (Kavanagh v. Canada), which declared that not allowing castrated male offenders accommodation in women’s prisons was discriminatory on the basis of sex and disability.

Halley notes that women’s groups have been silent on this issue, despite the fact that vulnerable female prisoners are exposed to violent and sexually aggressive transexual women, some of whom, like White, have transitioned only by wearing wigs, makeup, and prosthetics. This doesn’t seem fair to the women inmates, already incarcerated but then facing further dangers from government policy.

Halley’s article goes in about her long and frustrating attempts to get official information on the number of transgender offenders transferred to women’s prisons (they’re apparently few but almost all were convicted of violent crimes). The article is in fact marred by Halley’s largely superfluous digression about the Canadian government’s unwillingness to give information, as the digression dilutes the issue at hand: how do we deal with transgender prisoners? One could, I suppose, put them in isolation, but that doesn’t seem fair: nobody should be given extra punishment for being atransgender individual. And yet we must protect women already in prison from further violence.

The only thing I know for sure is that there is no rationale for putting biological males who have not undergone SRS or hormone therapy into prisons with biological females. While such “self identified women” may well think they are women (and of course some may be pretending to feel that way), and should be addressed with the pronouns they prefer, they should be treated, in both athletics and in prison, as if they are biological males.

As for what to do with SRS-experiencing transgender women, well, you can weigh in below.

 

The case of Malcolm Gladwell vs. Jerry Sandusky

October 9, 2019 • 10:45 am

In January of 2018 I wrote a post about whether Penn State’s assistant football coach Jerry Sandusky was guilty of child abuse. In 2012 Sandusky was, as you may remember, convicted of 45 counts of sexually abusing eight young boys. His prison sentence was 30-60 years, and, since he was born in 1944, this was of course a life sentence. 

My post dealt at the time with an article by Fred Crews (full disclosure: he’s a friend), the former chairman of the English Department at UC Berkeley and an incisive debunker of Sigmund Freud’s “science”.  Crews wrote an article on the website of Skeptic Magazine called “Trial by Therapy,” raising red flags about the evidence used to convict Sandusky and highlighting a book written by Mark Pendergrast (who’s also published on the fallacy of “recovered memory”) called The Most Hated Man in America: Jerry Sandusky and the Rush to Judgment . In Pendergrast’s view, Sandusky was “probably innocent.”

Now Sandusky, or rather one of his associates at Penn State, Graham Spanier (Penn State’s ex-President, who was fired), has resurfaced as one subject of Malcolm Gladwell’s new book Talking to Strangers: What we Should Know about the People We Don’t Know.  Gladwell’s thesis, which is pretty thin (and noted by several reviewers, so that the book hasn’t gotten the usual rave reviews of a Gladwellian tome), is that we practice a kind of confirmation bias in our dealings with strangers, trusting the words and actions of someone whom we like but demonizing everything said and done by someone we dislike. (This of course is playing out in national politics at the moment.)

In a new post at Medium, Crews discusses how Gladwell treats the Penn State case. And in discussing Spanier, Gladwell seems to come perilously close to admitting that the case against Sandusky was weak. But, argues Crews, Gladwell can’t bring himself to even say that, for the Sandusky issue is radioactive. As I learned, if you dare even question that a man accused of sexual abuse of multiple young boys might have suffered a miscarriage of justice, you yourself become one of the demonized. (Crews published the piece himself because no editor would touch it.) But, argues Crews (and Prendergrast), there are serious reasons to think that Sandusky was indeed railroaded. 

Click on the screenshot to read the article:

Here’s an excerpt, and then I’ll list the issues with the Sandusky case. I’m not that familiar with the trial itself, so I will say nothing beyond noting that if Crews, Predergrast (and Elizabeth Loftus, the recovered-memory expert who endorsed Prendergrast’s book) are right, we have to at least revisit the Sandusky matter.

Crews:

The thesis of Malcolm Gladwell’s best-selling new book, Talking to Strangers: What We Should Know about the People We Don’t Know (Little, Brown), consists of two related propositions. First, we humans are naturally disposed to trust others, and we find it hard to credit evidence that our trust was wrongly invested. But obversely, everything said or done by a “stranger” — someone we’ve already decided to mistrust — will be interpreted as consistent with that person’s bad intentions. The stranger (but for clarity’s sake let us rather say the alien) will further alienate us even by actions we would otherwise regard as admirable.

As an example of the first pattern, Gladwell cites the failure of Graham Spanier, then president of Pennsylvania State University, to notify the police in 2001 upon allegedly being told that a retired assistant football coach, Jerry Sandusky, had been seen sodomizing a child in the shower room of a campus sports facility. For that offense Spanier was dismissed by Penn State’s trustees and indicted, tried, and convicted of child endangerment. (The conviction was recently vacated, but a possible retrial looms.) Gladwell finds it easy to forgive Spanier, for Sandusky had been admired, even revered, for charitable works. In Spanier’s shoes, Gladwell is certain, you and I would have made the same mistake.

Needless to say, the guilt or innocence of Graham Spanier is not a topic of burning interest to the general readers who anticipated publication of Talking to Strangers. Even Gladwell surely regards it as peripheral. But for whatever reason or reasons, he won’t directly address the matter of Sandusky’s own criminality or lack of it. Nor, however, can he leave it entirely alone. Willy-nilly, he has placed in public view crucial revelations, previously known only to a small number of doubters, that cast the Sandusky issue in a novel light. And Gladwell himself must be counted among the commentators whose earlier pronouncements about Sandusky are now thrown into radical question.

Read Crews’s article to see how Gladwell, despite having hit on exculpatory factors for Sandusky, tiptoes around the issue. Here are some of the concerns raised by Crews and others:

1.) “The boy in the shower”, the linchpin of the case against Sandusky, swore in a written statement to Sandusky’s attorney that no sexual contact had occurred. After he hired a lawyer, the boy (now older) recanted. This may be because he wanted a slice of the generous settlement offered by Penn State to Sandusky’s victims—a settlement that turned out to be about $140 million, making any claimed victim a multimillionaire.

2.) None of the eight boys who eventually said they were molested by Sandusky ever told anyone about his misconduct before they spoke to police, and many continued to associate with him in the interim.

3.) Some of the accusations, like Sandusky locking a boy in the basement for three days and repeatedly raping him, with Sandusky’s wife, one floor above and oblivious to the screams, strain credulity.

4.) Some or all of the boys (it’s not clear from the piece) were subject to “recovered memory therapy”, and didn’t remember the molestations until therapists “helped” them remember the details.

The above is only a sample of other exculpatory data offered by Crews.

Here’s what Crews says about that, and about the motivations for these belated accusations:

It is this aspect of the case that drew the interest of the psychologists Elizabeth Loftus and Richard Leo, who understand that the theory of repression lacks any scientific credit. To them, belated “recollections” such as Sabastian Paden’s tale of a three-day sadistic kidnapping bore every mark of the dreamlike pseudomemories typically conjured by patients of recovered memory therapists. Paden may simply have been lying, of course. But the authorities who targeted Sandusky were indeed working in tandem with memory enhancers. One of them subjected his patient, Aaron Fisher, to months of daily brainwashing until Fisher more or less “recalled,” or pretended to recall, scenes of violation. “It wasn’t until I was fifteen and started seeing [therapist] Mike [Gillum],” wrote Fisher, “that I realized the horror.”

Other memories were refreshed as it became apparent that any new claims against Sandusky were likely to be believed. “I tried to block this out of my brain for years,” one turncoat declared. Another reflected, “That doorway that I had closed has since been reopening more.” A third stated, ”I have spent, you know, so many years burying this in the back of my head forever.” And after Sandusky was remanded to prison, Pennsylvania’s attorney general at the time, Linda Kelly, congratulated the ex-Second Milers for having dredged their damning scenes from the unconscious. “It was incredibly difficult,” she pronounced, “for some of them to unearth long-buried memories of the abuse they suffered at the hands of this defendant.”

The one major question that remains is what induced beneficiaries of Sandusky’s kindness to betray him so cruelly. Ziegler and Pendergrast know the answer — but so does Gladwell. “According to Ziegler’s reporting,” he remarks in the middle of a long endnote, where it will escape most readers’ attention, “at least some of Sandusky’s victims are not credible. They appear to have been attracted by the large cash settlements that Penn State was offering and the relatively lax criteria the university used for deciding who would get paid.”

“Some of Sandusky’s victims”? No, all of them. In a paroxysm of needless remorse, the Penn State trustees had broadcast the availability of a vast compensation fund that would eventually approach $140 million. An incentive was thus created for any young man who had once been helped by Sandusky, and even for some who had never met him, to spin a preposterous yarn and become an overnight multi-millionaire. And that is exactly what happened — for example, with the lawyered-up shower boy, Allan Myers. At last count, some thirty-five applicants, feigning PTSD at Sandusky’s hands, had availed themselves of Penn State’s princely largesse.

If you think 8 accusations is proof of Sandusky’s guilt, do remember the McMartin preschool case of “ritual Satanic abuse” of children between 1983 and 1987, in which 41 of the putatively abused children testified to that abuse before the grand jury and a dozen or so at the trial.  Those children were urged and nudged by therapists, police, and social workers to level accusations against two of their teachers, one of whom spent 5 years in jail. But in the end nobody was convicted. As Wikipedia reports,

The trial lasted seven years and cost $15 million, the longest and most expensive criminal case in the history of the United States legal system, and ultimately resulted in no convictions. The McMartin preschool was closed and the building was dismantled; several of the accused have since died. In 2005, one of the children (as an adult) retracted the allegations of abuse:

Never did anyone do anything to me, and I never saw them doing anything. I said a lot of things that didn’t happen. I lied. … Anytime I would give them an answer that they didn’t like, they would ask again and encourage me to give them the answer they were looking for. … I felt uncomfortable and a little ashamed that I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.

Is it possible that the Sandusky accusations fall into this class? You be the judge.  As to why Gladwell, who knew some of the facts above, won’t even hint that Sandusky may have been railroaded, one can at least guess at an answer. If Gladwell even hinted at that, his career as a writer would be over, for he would have stepped into territory that would have besmirched him in the public eye—territory from which there is no return. But here I’m only speculating.

Elizabeth Loftus has recommended Crews’s piece as well: