Wednesday, June 3, 2009

Chaptette 10: The Null Hypothesis

My Doha Diary takes a brief intermission to consider a political issue. If politics is not your thing, you know what to do.


First, statistics. When we test hypotheses, we assume the "null" hypothesis is true unless compelling evidence exists to show that it is false. It's like a court of law, which assumes that a person is innocent unless the state proves "beyond a reasonable doubt" that the person is guilty. This presumption is part of the American creed, as it should be. Just about the worst thing the government can do is to deprive of us of our liberty and, no, I don't include taxes and regulations in this category: I mean the government imprisoning us when we're innocent.

Last week -- this may have slipped your notice -- the Supreme Court ruled 5-4 to weaken our legal protections.

Here's the deal: From countless law and order shows, we all know about our Miranda rights ("You have the right to remain silent....You have the right to legal counsel...Anything you say might be used against you in a court of law" and so forth). Because not everyone questioned by The Man will really understand what this means and how important it can be to them, the Supreme Court ruled in 1986 that a prisoner "could waive his rights to counsel only in the presence of a lawyer, or by initiating contact with the police" ( In short, it's a very good idea to have your lawyer asking you "Do you really want to waive your right to counsel? Are you sure you really know what you're doing here?"

Last week the Supreme Court changed its mind on this. Justice Scalia, writing for the majority, concluded (apparently, without much evidence) that the requirement to have a lawyer help a person decide whether to waive the right to a lawyer was unworkable and -- get this -- the "marginal benefits are dwarfed" by the chances that guilty persons would go free.

Now, writing for the minority (of one, me), here are my conclusions:

1. Would conservatives please stop complaining about activist judges? An "activist" judge is one who overturns existing precedent or democratically adopted policy. But judges, whether liberal or conservative, do this all the time: Scalia did it here. For all practical purposes, the working definition of an "activist" judge should be: "A judge who disagrees with me."

2. Ensuring that prisoners have lawyers to advise them -- even if it is to waive their right to a lawyer -- protects the guilty? What kind of comment on the legal system is this? The main question of the court is to determine who is guilty, so we want to make sure that everyone has legal counsel not so much to protect the guilty as to protect the innocent. (I haven't checked, but the NYT argues that a wide array of Republican and Democratic law enforcement officials and judges supported the existing policy, because it ultimately makes law enforcement more effective.

If you're read this far, thanks. Here's one (well, two) final thoughts. Let's say two people are charged with some heinous crime, and we know that one is innocent and the other is guilty, but we don't know which is which. Let's say we are going to try them both together, and we'll either acquit both or convict both.

What would you do?

I think Scalia would say: "To protect the public, we must convict both. That's the price of security."

I would say: "We don't protect the public by convicting the innocent. To preserve liberty, we must acquit." (Ok, we might want to watch both of them in the future...)

He might respond: "What if it was your son who was killed?"

I would answer: "What if it was your son who was sent to prison?"

The lecture is over. Next chaptette: food, or something else fun.


  1. Hi, I read it twice.

    During my divorce and subsequent appeals, more hearings, lawsuits,etc.etc.... I lost all faith in the judicial system to protect anyone's rights lawyer or no lawyer.

    During the five years of advocacy I did in the state of Florida on behalf of children with special needs and their families, I lost all faith in the government to do what is right for those who are least able to fight for themselves....

    I thought that judges were people who had proven themselves to be wise and take the higher road, so to speak. I have seen women taken away from their children after their husbands had beaten them because the police chose to believe the husband saying the wife had been beating the husband....bizarre but true. I have a friend, a physician who was forced to move out of his home because an anonymous phone call accused him of molesting his three year old daughter,, Thirty thousand dollars later in legal fees, he gets his parental rights returned and it is eventually found that the babysitters alcoholic husband had been molesting the child. It was the babysitter who had made the call.

    I am saddened by this decision. I agree with you. I think I am even more pessimistic though. It seems to me that our system is very broken. I am thankful that we have the technology now to help protect more innocent people from being sentenced for heinous crimes but it is a drop in the bucket. Justice seems to be what you can buy and as many wonderful public defenders there are, they are overworked and underpaid.

  2. Agreed. I just might need to rethink one of my personal life goals ("avoid lawyers and the legal system as much as possible"). One of my colleagues is now going back to law school so he can participate more actively in "innocence project" type activities...this might just be a second calling.