In the Courtroom: Expert Witnesses on Feces + Dictionary on "Shit"

I've blogged previously about expert witnesses testimony - especially the views of some Irish judges about economists as experts - and came across this really funny post about a recent Iowa Court of Appeals decision about the need for expert testimony to establish whether something is feces. The case concerned an attack on a correctional officer by a prison inmate with a brown substance followed by him yelling, "I got you with shit." The inmate challenged his conviction claiming that the state had not adduced expert evidence to substantiate the charge of assault with feces.

The court did "not believe the identification of feces falls solely within the domain of expert testimony." According to the judge, "[i]f it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces."
The judgment is also noteworthy for its use of the dictionary for a definition of the word "shit." The judge elucidates on the "versaitility of the word 'shit'" with some humour (see footnote on page 7, internal citations omitted):
"Shit" is defined as excrement. Webster‟s Third New Int‟l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise. For examples, see State v. Vance,  ("He is going to find the shit . . . ."); Estate of Harris v. Papa John’s Pizza,  ("[S]hould be on his „shit list‟ . . . ."); Civil Service Commission of Coralville v. Johnson,   ("You ain‟t going to be shit."); Wilson v. IBP, Inc.,  ("[T]his guy‟s full of shit."); Marks v. Estate of Hartgerink,  ("It takes a lot of guts and shit . . . ."); State v. Anderson,  ("[W]hat‟s this not guilty shit."); Knox v. Municipal Court of City of Des Moines,  ("You are still a Fascist and your swastika (indicating) Heil Harrison, Heil Harrison and all that shit."); Graves v. O’Hara,  ("We have f**king shit to haul . . . ."); State v. Shortridge, ("Holy shit, let‟s get out of here . . . ."); Peck v. Employment Appeal Board,  ("[A]sking what „shit jobs‟ were available."); State v. Findling,  ("I mean this is really big shit here."); Wiysel v. William Penn College, ("[H]is words were so much „sanctimonious shit.‟"); and Blong v. Snyder,  ("[They] told him the pieces he had run were all „shit.‟"). The remarkable versatility of the word "shit" is also demonstrated in George Carlin‟s "Filthy Words," a verbatim transcript of which is set forth in full in the appendix to the United States Supreme Court‟s opinion F.C.C. v. Pacifica Foundation.

My previous posts on dictionaries in the court are here and here. Paul MacMahon's views on dictionaries here.

Elite Academic Credentials = Top Jobs

CNN has an article based on a new study by a professor at Northwestern showing the chokehold of those with elite academic credentials on elite jobs at Wall Street banks, law firms, and management consultancies: "elite professional service employers" rely more on academic pedigree than any other factor. For recruiters, it's prestige that counts, rather than "content" like grades, courses, internships, or other actual performance. That's because if you got into a "super-elite" school -- which essentially means Harvard, Yale, Princeton, Wharton (University of Pennsylvania), and Stanford -- you must be smart. Plus, time spent at those bastions in turn will make you "polished" and attractive to corporate clients. It is, according to Rivera, a largely self-perpetuating hiring process that prizes efficiency: Why spend effort looking for "that one needle in the haystack" at a "safety school" like the University of Michigan or, heavens forfend, Bowling Green, when the run-of-the-mill Yalie's still a prince. Even "second-tier" Ivies like Brown, according to Rivera, are suspect for the top firms.

This conforms with my own experience. Legal academia, at least in the US, is also very focussed on elite credentials. This does not happen as much in the UK probably because there isn't a large enough supply of candidates with elite credentials for jobs in law schools. Anecdotally, many candidates with doctoral degrees from Oxford and Cambridge - which have small cohorts in any case - seem to seek jobs in law firms, international organizations, etc.

Zogby Poll: Obama's Approval Ratings Lower than Ahmedinejad's in Arab World

A new Zogby poll of the Arab world has very interesting findings: "President Obama's favorable ratings across the Arab World are 10% or less." Worse than Bush. Ahmedinejad scores higher in every country bar Saudi Arabia. Somewhat surprisingly, Sarkozy scores really highly in Morocco and Saudi Arabia.

Approval for the killing of bin Laden:

Attitudes toward US:

You can see the poll here.

Ban on Repossessions Delaying Inevitable?

Repossession orders are down according to the latest figures in the Independent, dropping from 985 to 583 during 2010. The Irish Times also has a report on the topic noting "an increase of 65 per cent in applications for judgment mortgages" in the Circuit Court over 2009. Similar actions increased 128% in the High Court.
Unsurprisingly, there were 13,613 debt judgments in the Circuit Court during 2010 (up 25%), and 30,000 in the District Court.
The report also notes that "[t]he High Court dealt with 3,207 debt-recovery cases, up 28 per cent on 2009. The District Court issued 1,564 ejectment orders last year, up 76 per cent on the previous year. There has also been a trebling in bankruptcy cases in the last two years, with 29 bankruptcies granted in 2010 compared to eight in 2008."

Given the state of the economy, how many of those currently in arrears are likely to avoid repossession after the 12 month moratorium? This policy is just kicking the can down the road and preventing the market from achieving the necessary correction. No one wants to see neighborhoods blighted by empty repossessed homes but setting up this artificial situation with a repossession embargo cannot be a good idea.

Saggy Pants Banned: Overreaching Law?

The fashion police strikes in southerwestern Illinois. Collinsville's city council voted to ban saggy pants and impose criminal penalties for breach. Via the Chicago Tribune:
"The Belleville News-Democrat reports the ordinance forbids pants that ride lower than 3 to 4 inches below the waistline of the underwear. A first offense is punishable with a $100 fine, while a second offense would carry a $300 fine plus 40 hours of community service."

In another example of regulatory overreach at the national level, Congress failed to repeal a new lightbulb law; its first phase comes into effect from "Jan. 1 through 2014, [and] requires bulbs to be 25 to 30 percent more efficient. The second stage could require bulbs to be 60 percent more efficient by 2020. ... The restrictions could eliminate the familiar incandescent bulbs, which have used essentially the same technology since Thomas Alva Edison invented them.
Republicans ... said the new types of bulbs are too expensive. Prices range from about $1.50 for a halogen incandescent to $20 for light-emitting diode, or LED, bulbs, which are supposed to last 10 years. Regular bulbs today cost about 35 cents."
More at the NYT's website here.

More Delays in Anglo Investigation

Will this ever end? Justice Kelly's deadline seems set to expire without any discernible action as the investigation has not moved beyond the 90% mark. Via the Independent:
The ODCE and the gardai have indicated that they will not be in a position to complete their files for the Director of Public Prosecutions, James Hamilton, until at least the end of the year.
Although 90pc of the files have been completed, witnesses are still being interviewed in connection with the rest of their inquiries.
Some 200 people have already co-operated with the investigation but more than 40 other witnesses have yet to be seen.

I posted previously about reading speed in this investigation. Other posts on the investigation can be found here, here, here and here.

Amidst all this, the DPP is quitting to protect his pension.

Irish Times Op-ed on Judicial Independence

An opinion piece in the Irish Times (unlike the typical Irish Times op-ed this one actually advances some opinions!) today claims that the chief justice must be elected by the other judges of the Supreme Court to "honour the principle of judicial independence perfectly. If ... such a closed system is too cosy, the choice could be made by a committee consisting of judges, lawyers and respected laymen along the lines of the Judicial Appointments Advisory Board that now screens appointments from the profession to the bench."

Maybe. But what is the evidence that the present system is compromising independence? The example offered by the author - Liam Hamilton's appointment after the beef tribunal's mandate was concluded - is not necessarily a reason to take the appointment power away from the government. It offers a good argument against employing sitting judges in tribunals where the government might be a party. Such appointments need to be predicated on an embargo against the judge being promoted or appointed to another position upon retirement to avoid suspicion. Otherwise suspicions about quid pro quo deals are hard to dispel.
To be sure, the current system might benefit a judge particularly adept at obtaining political support but I haven't seen any evidence that it has compromised independence or quality or that the alternative method would offer superior results.

The author also writes that "judicial independence requires that the decision on promotions from the High Court should be removed from government to an independent body ... in line with what happens in England and Northern Ireland," and makes a plea for "a more general reconsideration of the implications of the constitutional guarantee of judicial independence reviewing the system of judicial appointments, the tenure and accountability of judges, guarantees of their impartiality and how their remuneration as well as the overall funding of the courts should be decided."

Again, maybe. It would help if there was some evidence that the current system is broken. Are judges of the High Court and Supreme Court not "independent" because they are appointed by the government? Is there evidence that they rule in favour of the government at a rate suggesting bias? Is there evidence that bad judges have been promoted? Is there evidence that "less-independent" judges write poor judgments or are otherwise poor performers? Finally, while independence is important, accountability and transparency are at least of equal importannce when one talks about judicial reform.

One more strike against elected judges?

I blogged recently about John Waters' suggestion that Irish judges be elected by the public. In that post I pointed to evidence showing that an elected system yields judges who behave more like politicians than professional adjudicators. Now here's some more evidence via an article about Alabama judges - who are elected - via the NYT:
Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence. ... more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative... The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas.
...
Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system.
The full article is available here. It shows a clear divide between Alabama and two other states - Florida and Delaware - where judges are appointed. The desire to be seen as tough on criminals surely has to be one explanation for this contrast. Note that this is in Alabama - no one would accuse its jurors of being liberals or softies!

Minister Shatter on Judges' Memo

I've blogged previously about the judges' memo and the reported conflict between the Minister and the courts service. The Irish Times contains some interesting quotes from the Minister today seeking to allay concerns that the judiciary is being targeted:
“I think it’s regrettable that the matter is on the website, but to some extent it’s a side issue," he said. “I think it’s very unfortunate that an unnecessary controversy has arisen over the commitment in the programme for government to hold a constitutional referendum to deal with the issue of judicial pay, and essentially to facilitate applying to the judiciary in a manner that’s constitutionally appropriate and protects their independence the same public sector wage decreases that have impacted right across everyone who is in receipt of public pay.”

“There can be never any question of the judiciary being as a group or individually targeted for pay reduction,” Mr Shatter said.
“The Government believes this is hugely important to ensure that public respect for the judiciary is maintained and there isn’t a public perception that they’re immune from the financial and economic cataclysm that has hit the State and has affected so many people.”

Perhaps this whole controversy could have been avoided by better communication and drafting of the text. If it were to be tightly drafted to allow for pay reductions only in emergent circumstances when the pay cut was imposed across the board to all public servants, the judges' fears would be allayed. They have repeatedly asserted that they are not opposed to a pay cut.

Gallup Poll on Confidence in Criminal Justice System (US)

Since we've been discussing judicial pay and related issues, this new Gallup poll on confidence in the criminal justice system might be of interest. Surprisingly, Americans' confidence in the criminal justice system was on par with that for newspapers! Out of 16 institutions surveyed, both came in at no. 9, well below institutions like the military, small business and the police.

 

Chief Justice Roberts on Legal Scholarship

The American Constitution Society's blog quotes the Chief: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

The C-Span video is here.
 
The Chief's views are not new. Legal scholarship has moved away considerably from doctrinal case-crunching and the primary audience that law professors write for is other academics. To be sure, some legal academics do write case reviews and other valuable doctrinal material. This is especially the case in jurisdictions like Ireland, where legal scholarship is still evolving. But the implicit assumption in Justice Roberts' view - that legal scholarship has to be "relevant" to legal practice - runs counter to the objectives of contemporary legal academia.

Conflict between Minister and Judges over Publication of Memo on Pay

There is allegedly a conflict brewing between Mr. Shatter and the courts service over the latter's decision to post a memorandum prepared by judges in response to the proposed referendum over pay. The minister is reported to be upset about its publication on the courts website.
I must admit that it is a bit unusual for judges to publish such a document on the courts' website. However, given the kinds of shots being taken against them by politicians in the media and their reluctance to engage in unseemly public spats, publication of the memorandum sets out their position in public in a dignified manner. And, it allows both sides of the debate to engage with principled arguments rather than rhetoric.

Some key points from the memo (my comments are in blue):

• ... judges of the High Court and Supreme Court are effectively debarred by the Rules of the Bar Council from returning to legal practice following resignation or retirement. If ... the constitutional principle that there be no reduction in judicial remuneration is altered, then the basis for the permanent abandonment by a judge of the practice of his profession is undermined. ... no one would be prepared to give up the right to practice a profession permanently if they did not have the assurance of fixity of salary and tenure of office. There are good reasons for debarring a judge from practicing before an equal or lower court. But does this mean that a former judge is permanently abandoning the profession? Much legal work has nothing to do with the courts. Former judges could join law firms and get paid a lot of money? They could become arbitrators and mediators. Or legal academics. Or practice in a proximate foreign jurisdiction? So, to say that there is a permanent abandonment of the profession is a bit of a stretch.
• Why, then, should this rule [against earning other income] be maintained in such circumstances if the quid pro quo - no reduction in pay - is being abandoned? Many continental judges (including, for example, judges of the Court of Justice and the German Constitutional Court) hold offices of emolument for example as Professors in universities. I've posted on this subject before. There are veryt strict rules in the US and other jurisdictions on the earning of outside income. It cannot exceed 10% of the total remuneration and can only come from certain sources that do not pose conflicts of interest. So, this point must not be overstated because even if we adopt the US rule and allow 10% outside income it will not make that much of a difference when the pay cut is much larger.
• Could, for example, a judge who engaged in part-time arbitration work continue to hear arbitration cases in his or her judicial capacity? Absolutely not, this would not be allowed in the US, and I doubt it would be in most jurisdictions.
• ... the language [of the proposed text] is extremely loose. It would provide no limitation on the circumstances in which a reduction should be made; the government’s view of the "public interest" (as reflected in the legislation enacted by the Oireachtas) would suffice. There is no method of calculating the reduction identified. The only figure by reference to which such a reduction should be effected is contained in a phrase of very broad potential application, namely, "in the public interest". Good point, the text is unnecessarily loose and overbroad.
• ... the bodies which are to be charged with deciding the reduction, both as to whether it is required and by reference to what comparator such reduction should be calculated, are the other branches of government, i.e., the Executive and Legislative branches. Isn't that the whole point behind the separation of powers? These organs are given the task of setting pay in similar legal systems.
• There would be furthermore nothing to stop the Oireachtas enacting legislation cutting the pay of any other office holder(s) and applying that particular pay cut to the judiciary. There is nothing in the suggested wording of the proposed amendment to prevent a series of "tactical" cuts being applied to different classes of public servants, but each of whom can be applied to the judiciary. I've blogged about this before. The wording in the proposed draft is capable of mischief and needs to be improved. It must rule out pay cuts unless there are emergent circumstances and unless all public servants are being hit with a similar cut.
• The principles of judicial independence require that any decision regarding judicial remuneration and the reduction in judicial pay must be taken by an independent body. Not necessary under traditional separation of powers doctrine.
• A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence had been - even unwittingly - compromised, were the suggested wording for the amendment to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system. Doubtful. Besides, who cares?
• That confidence [independence of judiciary] is not only a bulwark of the Constitution’s freedoms which we as citizens enjoy in a free society, but is an essential bedrock of economic confidence on which our recovery from the ordeal to which the State is at present subject is completely premised. Bit of a stretch.

In conclusion, the memo is strongest when it sticks to critiquing the drafting of the text and it is weakened by several unnecessary arguments [like economic confidence, international reputation etc] that are not supported by any evidence. Will the government improve the wording of the draft and end this unseemly controversy?