The Rechtsstaat and “Law and Order” / Follow-up: Nazis III: Various takes on “Law and Order”

As I have noted in variations in the past “the two central pillars of a true Rechtsstaat [are] that citizens are protected from harmful acts by other citizens and from governmental overreach, arbitrariness, whatnot” (here quoting from the most recent instance). Noting some drifts and attempted drifts in (most notably) U.S. law and application of law, this plays in well with an older text on the understanding of the phrase “law and order” ([1]).

We can, in particular, see that some acts disguised as “law and order” aim to (or accidentally do) weaken the second pillar, while more bona fide efforts strengthen the first pillar.* Contrast e.g. the various recent abuses of the DOJ to persecute, say, Trump, the J6 victims, and various pro-lifers with the leniency shown against e.g. BLM rioters and looters, Black shop-lifters, whatnot.** The former weakens the second pillar; the latter, the first pillar.

*Going back to [1], we might say that a Conservative take strengthens the first pillar, while a politicians and/or Leftist take might weaken the second. (Depending on the Leftist. The take described in [1] might go more in the direction of a first pillar that is one-sided to protect one group but not another.) Similarly, a police state (“Polizeistaat”) is an example of a very weak second pillar—not of a strong first pillar. The Rechtsstaat, in contrast, would be one where both pillars are strong.

**A particularly interesting case is the prosecution of Kyle Rittenhouse, who killed to protect himself from a life-threatening attack by several Leftist thugs, contrasted with the non-prosecution of Gaige Grosskreutz—a surviving thug. Instead of being prosecuted, this thug has tried to sue various entities for compensation for the consequences of his own actions. (I have not heard any further news on his success or failure.) In a semi-happy ending, Rittenhouse was acquitted, but Grosskreutz, to the best of my knowledge, has never even been brought to trial—more than two years after the events.

Look at how this plays out with the apparent Democrat approach to and motivations for gun control: Criminals (mostly Black, at that) commit crimes with predominantly illegal guns; ergo, let us ban legal gun-ownership for non-criminals (mostly White, at that). This does nothing to strengthen the first pillar, but it does reduce the ability of the citizens to defend themselves against criminals.* Worse, it might unduly reduce the ability of the citizens to defend themselves against the government, thereby weakening the second pillar.**

*Which, depending on point of view, could be seen as weakening the first or the second pillar, or as something else entirely. Regardless, it is a clear further violation of the implicit bargain behind a governmental “monopoly of violence”: the citizens forego some types of (justified) own violence and, in return, the government exercises the equivalent violence on behalf of the citizen, when need arises. Here the citizens are forced to forego further justified violence, specifically acts of self-protection, with no further aid from the government. (While unjustified acts of violence, by criminals, are made the easier…)

**But why should a (non-criminal) citizen ever use guns against the government? Well, that depends on the government, as demonstrated e.g. by Nazi-Germany (and laws must not be made under the assumption of a good government—this error explains why the second pillar tends to be so weak) and where the U.S. has been heading these past two years. For that matter, there are past cases in the U.S. where defense has been justified, as with the “Ruby Ridge” atrocity. If nothing else, the possibility of resistance can be a deterrent for a government to push too far, in the manner that the Biden regime is currently trying.

Excursion on arming government agencies:
In parallel, the Biden regime is trying to unduly arm various government agencies, which is a potential sign of future problems to come and which can severely weaken the second pillar. Why, e.g., should the IRS have weapons? In a sound and sane system, there is no justification, as any duties that might legitimately involve weapons are better put with law-enforcement agencies. If, for instance, the IRS needs a home searched, it should get a court order and then have the actual police* execute it, if need be with someone from the IRS present as a “domain expert” to make judgment calls about what findings are or are not relevant. Similarly, no agency should ever have the right to “self-issue” a search warrant (or similar), even should it have an “in house” judge** of some kind—it must always go over the regular courts.

*Whether this would be the local police, some federal agency, or a whatnot, I leave unstated. The point is that it must not be the IRS—the consequences of letting the IRS handle such matters could be disastrous from a Rechtsstaat point of view.

**This, too, might be something that should not be allowed, but even given such a judge search warrants must go over the regular courts to avoid further weakening of the second pillar. If in doubt, such searches must be extremely rare and, e.g., the IRS is almost bound to use them too often, if the hurdle is not high enough.

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Chauvin trial II / Follow-up: Utterly insufficient data, insight, and thought

As an addendum to my last text:

A particular dangerous and dishonest part of the prosecution’s rhetoric is the whole “believe your eyes” sloganeering. The entire issue with this trial is that just looking at the video evidence gives a simplistic view of events. Indeed, in [1] I discussed lack of insight and thought as a society wide problem and exemplified it with the (long before trial) interpretations of the Chauvin–Floyd events that did not consider e.g. complications through drugs.

That the prosecution continues to push this simplistic angle is both depressing and a sign that its case is comparatively weak. Still, as demonstrated by O.J. and that glove, such sloganeering can be effective—no matter how cheap and misleading.

What our eyes tells us is very often not reliable—something many observant children pick up from optical illusions.* Apart from such directly misleading optical impressions, we have to consider both that other sources of evidence can be relevant in order to understand the situation and (often overlapping) that the “raw” evidence at hand might need interpretation in order to reach a correct understanding.

*For instance, the famous picture that shows a young or an old lady depending on how it is viewed, or those lines who look different in size but are measurably identical. Indeed, the Chauvin-trial provides an interesting example of such an easy illusion, too, in that some scenes where Chauvin’s knee appears to be on Floyd’s neck suddenly show the knee on Floyd’s shoulder when a different camera angle is used. (According to written reporting. I have not verified this, myself.) Or what about that dress where viewers cannot even agree on the color?

To take another example for children: when I was around five, I was at a public swimming pool with my family. I and my sister were given money to use a pop-corn machine of some sort. As my cup was almost full, I began to worry that it would over-flow, that I must somehow manually tell the machine to stop. I did the most naturally thing that came to me and lifted up the see-through flap in front of my cup. The pop-corn flow immediately stopped. My sister was up next. I told her that she could or should stop the flow by lifting the flap when she felt that she had enough. She did so earlier than I had—and an UNinterrupted flow of pop-corn spilled onto the ground.

The reason: I had neither considered all the available evidence, nor considered the evidence in light of reason. If I had, I would have noted that there was no obvious mechanism that allowed the flap to interrupt the flow, I would have considered e.g. a coincidence, and I would have contemplated the possibility that there was some type of automatic termination once a certain quantity had been dispensed. From an adult perspective, what happened with my pop-corn was that I began to fear an over-flow once the limits of the cup were reached, which is when the machine, by design, terminated the flow.

Unfortunately, this type of simplistic thinking, the taking of a superficial impression and jumping to conclusions, is extremely common. Good example include many abused statistics, e.g. the 77 cents on the dollar fraud and the (relevant to the Chauvin-trial) claims of “racial discrimination” or “systemic racism” that note e.g. that Blacks are over- or underrepresented relative their proportion of the overall population without considering more relevant sub-populations,* differences in individual behavior,** and similar.

*E.g. that a better baseline for deaths of ethnicity X at the hand of the police is the proportion of hard criminals of ethnicity X—not the proportion of ethnicity X in the overall population. E.g. that a college cannot be faulted for admitting students at a rate that corresponds to the proportions among those who have GPA’s and SAT scores above a certain level—not proportions in the overall population.

**Often overlapping with the previous footnote: If someone engages in criminal behavior, tries to resist arrest, whatnot, the risk of dying in a police incident is increased very considerably. If someone does not work hard in high school the chance of college admission is diminished accordingly.

Finally, concerning the guilt-or-not-guilt of Chauvin vs. the settlement: In my previous text, I mentioned that “Moreover, while the burden of proof is lower in a civil suit, an acquittal of Chauvin (just wait a few weeks for Pete’s sake!) could have been a strong indication of a rejection of damages or an awarding of a much smaller amount in court.”. While I stand by that claim (and by the claim that the amount of the settlement was absurd), I should add that there are at least two other factors than burden of proof that could justify a payment, even should Chauvin be acquitted: Firstly, it is not uncommon that restitution is justified even absent criminal guilt.* Secondly, if Chauvin was acquitted e.g. due to having followed protocol, this would not automatically imply that the protocol was reasonable and conscionable. If the protocol was then found to be flawed, the city could still be culpable.

*Consider accidentally breaking the neighbor’s window while playing baseball, for a trivial example and to stick with the theme of children.

Chauvin trial / Follow-up: Utterly insufficient data, insight, and thought

As the Chauvin trial is approaching final arguments, I will summarize my view in advance, to avoid the risk of later rationalization (or accusation of such).

In my past writings, there have been several mentions, probably most notably in [1], more than nine months ago:*

*Footnotes of the original text have not been duplicated. Please see the original text for these, the full context, etc.

From what I know at this stage, it is possible that even a drugged and unhealthy Floyd would have survived without the knee, but it is also possible that he would have died anyway. Remove the knee, and he might or might not have lived. Remove the drugs, and he might or might not have lived. Remove his health problems, and he might or might not have lived.

On the outside, it seems extremely likely that Chauvin, the “knee”, had no intention of causing death or permanent harm. Indeed, if he did, he would have to be Darwin-Award level stupid to do what he did on camera and in front of witnesses. Certainly, I have not seen one shred of proof that the event was motivated by racism. (Also see an earlier text on this situation.)

In a sane society, we might right now have an objective debate about what police methods are or are not safe, demeaning, whatnot. What we do have are near-blanket condemnations of “racist murder”, “institutional racism”, “racist police”, etc.—not to mention riots and looting.

I am going to go as far as to say that, unless further evidence appears and provided that the trial is fair, Chauvin will ultimately be acquitted of any murder charge, simply because there is next to no possibility to gain “beyond reasonable doubt” if even half of the “off screen” claims are true. There might or might not be room for a manslaughter conviction or some relatively lesser crime (reckless endangerment?), but not murder.

From what I have read* about the trial (in general) and testimony (in particular) so far, I see these claims broadly validated.

*See excursion for partial sources.

The scope of Chauvin’s guilt might (or might not*) be a little larger than I thought, in that he might (or might not*) have violated departmental procedures or shown poor judgment. However: Firstly, there is no indication whatsoever of e.g. a “mens rea”, a deliberate attempt to kill, or similar. (And certainly not of racism.) At worst, his actions might have been incompetent or negligent. Secondly, even if his actions were incompetent or negligent, I have not seen more than claims that he was a contributor to the death of Floyd. Considering the overall circumstances, including potentially lethal levels of drugs in Floyd’s system, it would be virtually impossible to see Chauvin’s contribution as proved “beyond reasonable doubt”. This brings me to my thirdly—the burden of proof is on the prosecution and the required level of proof is “beyond reasonable doubt”**. If it had been “balance of probabilities”, Chauvin might (or might not*) have risked a conviction even in a fair trial, but with “beyond reasonable doubt” there are simply too many points that are not sufficiently proved.

*Different expert testimonials have made different claims, and quite a few factors have to be weighed in, including what the exact procedures are, how a reasonable police officer would have seen the situation, whether Floyd could have been a threat to himself or others at a given time, whether there was reason to fear danger from the crowd, etc. I do not have the depth of knowledge to judge this. I do note, however, that the other officers at the scene did not act as if Chauvin was grossly and obviously out of line. Moreover, we again have the issue of burden and level of proof.

**With reservations for exact terminology in the jurisdiction at hand.

As is, I am going to sharpen my original statement and say that he would not be convicted even of manslaughter in a fair trial; and, in particular, that he rightfully should be acquitted of all the charges that he is currently facing.

However, as a counter-point, I partially retract subsequent claims that Floyd probably died of a drug overdose. From my current state of knowledge, that too is too speculative, and my original take (as quoted in the first two sentences above) is the better. (But I would judge the third sentence as a likely thumbs up: remove the drugs and Floyd would probably have lived—knee or no knee.)

Unfortunately, and here things become complicated, there are strong signs that the trial was/is not fair. This includes doubt as to whether jury selection found a sufficiently impartial group, that the jury might have fears of personal repercussion in case of an acquittal, the potentially damaging effects of the settlement with Floyd’s family (see excursion), the vastly different resources and (probably) competence levels of defense and prosecution, and the use of evidence that has no place in a fair trial.* To the latter, I point at least to the use of extensive “Floyd was a great guy” testimony, which is utterly irrelevant** to the facts of the case and can serve only one purpose, namely to prejudice the jury. Whether Floyd was Pol Pot or Mother Teresa does not change Chauvin’s actions or motivations, does not change Floyd’s drug levels or health issues, or any other aspect of what actually happened.

*Which is not necessarily to say that the use was against U.S. law or U.S. standard practices. However, I do note that [2] speculates that another issue might provide grounds for mistrial. (A claim that I am not qualified to judge.)

**With some minor reservations for issues that, in my impression, have not featured in the case, e.g. speculation that Chauvin might have known of Floyd as a bad guy and might have wanted to remove this known bad guy from the streets or, absent medical tests, that it could have affected the believability of the claim that Chauvin had taken drugs.

Excursion on sources:
My largest individual sources of information during the trial and pre-trial phases have been a number of early texts by Scott Johnson, who has analyzed the jury-selection process, and, after this source dried up, Coverage by Anastasia Katz. Other sources have provided just an article here and an article there, and I have not kept a record. (Except for [2] above, which I encountered today.) I note that somewhat factual sources have tended to say similar things as Johnson and Katz, but that strongly partial have gone off at different angles—ranging from Chauvin “obviously” having done nothing wrong whatsoever to Chauvin “obviously” being a malicious murderer. As a disclaimer, I stress that I have not spent as much time on the trial or had as thorough access to evidence and testimony as the jurors.

Excursion on “if Floyd had been found elsewhere”:
A common argument in the pro-Chauvin camps is that, by expert testimony, if he would have been found dead elsewhere, an overdose would have been assumed. This argument has merit, but it is not as strong as it might seem. Consider the common physician’s cliche “if you here hoof beats, think horses—not zebras”. This is a statement about what is more plausible in a certain setting (e.g. the U.S. while not in a zoo). Change the setting and it does no longer necessarily hold. We could well have an expert (correctly) testify that if he heard hoof beats in a zoo or in some parts of Africa, his thought would be “zebra”. This does not alter the fact that “horse” is the better assumption on e.g. a random Texan ranch. To judge which explanation is the better, then, we have to look at the actual situation at hand—not at some other situation.

Excursion on Floyd’s character and the settlement:
The settlement is a disgrace and such a waste of city money that it should be cause for the immediate resignation of the decision makers and that they should be forced to pay back every single cent to the city out of their own pockets. The settlement was extremely pre=mature and likely deliberately timed to have a negative effect on Chauvin’s chances. Moreover, while the burden of proof is lower in a civil suit, an acquittal of Chauvin (just wait a few weeks for Pete’s sake!) could have been a strong indication of a rejection of damages or an awarding of a much smaller amount in court. (Here I had also intended to go into a long discussion of the absurd sum relative the life a scumbag vs. sums awarded to more upstanding and more innocent citizens; however, a brief research shows a long history of absurd awards in wrongful death suits in the U.S. The amount is and remains absurd, even compared to most other cases, often involving much worthier people, but it might only be a portion of a larger problem.)

Excursion on “systemic racism”, etc.:
The brouhaha around Floyd and Chauvin, contrasted with e.g. the Ashli Babbitt situation, is yet another (!) indication that “systemic racism” and similar ideas are bullshit. Floyd was a criminal who, even very early on, seemed to have died more from poor police decision-making than malice (even before e.g. drug issues became known); Babbitt (White) seems to have been an upstanding citizen who was shot without warning by a police officer (apparently Black). The former case goes to trial with murder charges; the latter is dismissed with minimal publicity long before trial.

A few points concerning the movie “Anon”

I recently watched the movie “Anon”, which follows a police detective working in a police system (and society in general) highly dependent on implants that capture and modify the visual* impressions of the populace—like a mixture of “built-in” smart glasses and some of my own satiric suggestions ([1]).

*I am uncertain to what degree other senses were involved.

While the movie as a whole is not that great, it demonstrates several conceivable future dangers.

Of these the possibly most noteworthy are those present in [1]—or how a state like that could come into being*: Take “smart glasses”, make it an implant, connect it to the cloud, allow the police increasingly greater access to that cloud or even the implants themselves, and a nightmare scenario could very easily manifest it self.

*The movie it self gives no (in universe) historical background; however, the speculation is fairly obvious.

Another issue touched upon repeatedly in my own writings is the low value of digital evidence: Whatever is stored*, transmitted, replayed, …, digitally can be manipulated, usually very easily, in order to give an incorrect impression. This applies not just to obvious items, e.g. entries in the access log of a server or the presence of illegal contents on a private hard-drive, but increasingly extends even to e.g. video capture**. Even the (extraordinarily naive and absolutely intolerable) assumption that law-enforcement personnel would never manipulate evidence is not enough to remedy this problem, nor is the strictest tracking*** by “chain of evidence”, because there is no guarantee that manipulations have not taken place through a third party.

*There is an availability of write-only storage that to some degree could remedy this. However, this presumes that write-only storage actually is used (which can be impractical for e.g. cost reasons and the inability to re-use storage); does not help against manipulations during retrieval of the data; and can be circumvented by simply copying the one write-only storage unit to an identical unit, making only the wanted modifications, and then proclaiming the modified copy to be the original.

**To achieve sufficiently high-quality manipulations or forgeries today is rarely practical. However, at the rate CGI has advanced over the years, we will eventually (likely: soon) reach a point where anyone with even a semi-powerful enemy could be at risk. (Whether we ever reach a state where a single skilled individual can achieve this with at most a few hours work, as implied in the movie, I leave unstated. However, given enough time, that too might be the case.)

***Especially since such tracking would almost certainly be largely digital…

Anonymity and privacy, even outside police work, is another important theme (as might be surmised from the title): Walking along a street and being able to see the names, occupations, whatnot of the other pedestrians might be interesting and useful—but the same applies in reverse. I, myself, certainly would not be comfortable with that. Extrapolate it a bit further, and assume that (drawing on the current U.S.) someone who once was caught peeing in the park has a “sex offender” sign displayed over his head, or that (drawing on Nazi-Germany) Jews, homosexuals, whatnot come with their own warning signs. What if a direct connection with e.g. a Facebook account is made, and passers-by can extract almost arbitrary information, e.g relationship status, at will? Recall e.g. a recent assault over a mistaken identity; or note how easy it is for someone rooting for the wrong team or supporting the wrong party to be beaten up, if encountering the wrong crowd—or consider how information on income can affect the risk of being robbed or pick-pocketed.

From another perspective, consider the ability to replay the capture of previous sights—including e.g. love making. We could argue that that which we have once seen should be ours to see again—and I would mostly agree. However, it is easy to find special cases where this is highly disputable, e.g. when someone accidentally walks in on someone else who is having sex or otherwise being naked: It would not be unreasonable for the observed party to demand a deletion. Certainly, a kept recording might give far greater opportunity of observing details than the original (typically) brief flash. Similarly, there is a wide consensus that filming sex with a partner without consent is unacceptable—but what happens when everyone has a built-in camera? To boot, others can wish for even stricter criteria—I have, e.g., seen the opinion (but disagree) that even consensually filmed material must be destroyed after a break-up or that voluntarily given intimate images must be returned.

These problems are by no means limited to physical acts and nakedness: Consider e.g. the ban on cameras (including on cell-phones and notebooks) in many offices and factories. Or consider someone having a private conversation on which a third-party can now far more easily listen in*.

*An early scene showed even the near-inaudible dialogue of some passers-by being translated directly to text.

Alternatively, consider the invasion of privacy implied by a spouse’s or parent’s request to see a certain section of recording (“Where were you last night?!?”)*: Show it and lose privacy; do not show it and the worst will be suspected. (A similar situation is discussed in a text on lies under oath.) An interesting twist is provided by two (real life) parents who are repeatedly in the news for trying to get access to a deceased daughter’s Facebook account: What if this scenario is replaced by parents/spouses/children/whatnot who gain access to their deceased children’s/spouses’/parents’/whatnot implant data, including extensive recordings?

*It is my strong personal belief that even children relative their parents and spouses relative each other have a right to a considerably degree of privacy; however, even those who do not (e.g. an over-protective parent or a wife who fails to understand that the members of a couple are still different people) must realize that there can be areas where a legitimate need for such privacy can exist: Not everything that the one party wants to keep secret is necessarily harmful to the other, morally wrong, or susceptible to the (pseudo-)argument “the innocent have nothing to fear”. Consider e.g. a husband giving a female friend some help strictly for reasons of friendship, and a wife who has a history of jumping to (incorrect) conclusions about cheating.

Then again, we have anonymity (respectively lack thereof) in the frame of police work. I have earlier (notably in [2]) objected to e.g. computer searches for reasons like the presence of highly personal material and private information, as well as the risk that material that in theory would only be accessed by the police might leak out. What if the information collected includes basically everything seen or done by someone? (Including sex acts, intimate conversations, confidential business meetings, …)

Then there is the issue of hacking and security: Not only does this provide yet another channel through which private information can leak, but it also adds the risk of damaging interventions. For instance, the movie showed examples of visual input being sufficiently manipulated, in real time, that the victim could not rely on his eye sight. With this level of technology, it would be easy to e.g. have someone just walk into oncoming traffic. However, even with abilities more realistic by today’s standards, great harm can be caused, e.g. by having textual information altered to imply that another party is sleeping with the own spouse. Looking at self-driving cars, with similar vulnerabilities and a greater current realism, we could have a hostile entity manipulate a car into taking actions that lead to a car crash, a run-over pedestrian, or some other calamity. (See also e.g. [3].)

On the other hand, if external access is technically and legally sufficiently limited, there can be a great upside to some of the technologies. Consider e.g. re-running a business meeting or a lecture to refresh a failing memory; re-living an enjoyable moment; or (most enticing to me) re-visiting a portion of prior life to have another look at how things were back then or how one has developed or not developed, what lessons can be drawn and what could have been done differently, etc.

As an aside, it is depressing that while we live in a time when privacy and anonymity are more urgent than ever before (for the simple reason that they are so much easier to violate), legislation and other “government behavior” shows a broad trend towards weakening both. The fear of terrorism and organized crime makes this partially understandable; but not only do the “big bads” have far greater means to circumvent such legislation than the average citizen, the measures are often obviously intended against crimes of any kind. Both these factors point strongly towards the damage done being greater than the benefits gained. What we need is the reverse trend—and this not only with regard to the government, but also to strengthen protection against e.g. profile-building private enterprises, for instance by making it possible to order even physical to-be-delivered goods (close to) anonymously and by removing antiquated laws like the German requirement for a hotel guest to register with full and real name and address.

American Vandal

I have just watched the first season* of “American Vandal”—another proof that it is possible to do something original and worth watching even today, and that there is no need to just dust of every old franchise**, hoping that the “brand value” outweighs the lack of quality and originality.

*Whether this terminology reflects reality remains to be seen. From the closed character, I suspect that the series will remain at one season, and considering its shortness, it might be better labeled as a “mini-series”.

**Something I have spoken negatively of in the past, e.g. in [1].

It is not the best made series ever—not even close. However, it does bring something new to the table, and it does so while giving food for thought. This most notably in the area of due process, but also concerning privacy, the benefits and dangers of social media, press ethics, and organizations sweeping their problems under the rug—all areas where I have considerable concerns about current developments. (Cf. a number of older posts.) Some of these areas are discussed below.

!!!Here be spoilers!!!

A particular disturbing part, obviously, is how one character, Dylan, was originally expelled from school based on scant* evidence, by an entity that served as judge, jury, and prosecutor in one, and how his “conviction” was almost a foregone conclusion based on his previous behavior**. While this example is fictional, it does reflect common practices in the U.S., where there, for instance, have been cases of colleges expelling people under similar circumstances, often in word-against-word situations, using “preponderance of evidence” (or another too weak standard). Considering the effects of a college*** expulsion and the damage than can accrue through e.g. social media and reputation damage in today’s world, the consequences are potentially horrifying—often far worse than the alleged crime or even “crime”. When it comes to actual crimes****, it is vital that proceedings follow a level of due process, rights of the accused, whatnot, that is comparable to that of a real criminal trial—better yet, leave this to the actual justice system, and then make decisions, e.g. regarding expulsions, based on what the results of the justice system were. Even when no crime is present (e.g. with a pure behavioral matter), it is vital that the (real or virtual) roles of judge, jury, and prosecutor are sufficiently separated from each other, and that the “accused” is given sufficient opportunity to defend himself.

*The only evidence against him that was not, at best, circumstantial was a testimony by a witness, which was offset by conflicting testimony by an alibi giver. Neither witness had any obviously superior credibility.

**Dylan was a highly problematic student, and I do not rule out that his past behavior might have been enough for an expulsion. However, he was, as eventually transpired, innocent of the vandalism for which he actually was expelled.

***However, note that the series deals with a high-school expulsion. This is bad enough, but less disastrous both because there are more opportunities to gain back ground and (usually far, far) less money invested at the particular school. To boot, people who are expelled from high-school are rarely among those likely to do well in college, implying that the career effect is considerably smaller: We are still typically talking unemployment and/or low-wage, dead-end jobs, considering the low value of a modern high-school diploma.

****As was the case here, specifically the spray painting of 27 cars with stylized penises.

A somewhat tricky question in the series is that of false accusations—paralleling the considerable problems in the real world with especially, rape, child-abuse, and domestic-violence accusations: While Dylan was originally expelled and facing (real) criminal and/or civil charges*, the “witness for the prosecution”**, who seemed*** to have lied outright, did not face such repercussions—his sole fear being a beating from Dylan. It is possible that any attempt at action against him would eventually have failed due to problems of proving intent; however, it appears that an attempt was not even made. Similarly, in the real world, women who make false rape accusations are often let go with a slap on the wrist, while their victims could have faced many years in jail—and often see their lives ruined even when acquitted. Under such circumstances, there is a severe risk that the system is abused e.g. to maliciously hurt personal enemies who have not committed a crime.

*He was proved innocent by video evidence before the real trial in the real justice system started.

**Whether he should be considered the accuser or just a witness can be disputed, but from the details of the show, the difference is likely uninteresting for the current discussion. (However, in most other cases, witness and accuser are quite different things.)

***At least for some time: A later hypothesis involved a suspect with some similarity in looks, and assuming, as was claimed, that the perpetrator wore a hood, an honest mistake is conceivable. However, this hypothesis only arose some time after the “acquittal”, was not necessarily presented to the school, and certainly remained a hypothesis. To boot, the witness had originally spoken with considerable certainty. (I do not recall the exact formulations used, but it was on the level of “I saw Dylan do it”—not e.g. “I saw who did it; he looked like Dylan”.

As a counter-point, we have the question of witness pressure: The “witness for the prosecution” later spoke of having been under a lot of pressure to say the right things. If that was the case, and if he modified his statements to comply with the pressure, someone of his age should be seen in a more forgiving light. However, we then have to condemn the proceedings even more: Witnesses are unreliable enough as it is and when they additionally face pressure to give the “right” answers, testimony is worth very little. It is vital that witnesses are induced to say what they actually remember—not directly or indirectly moved to say what the prosecution wants to hear. Here we again see the importance of dividing the roles of the “court” appropriately, so that the prosecution is neither judge nor jury. Further, where there is a prosecutor to exert pressure on witnesses, there must be a defender to press back. In this specific case, we had the additional complication that the witness was another student, and therefore in a dependent role visa vi the school staff making the decisions, implying that thoughts like “I must keep Mrs. X happy, or she might give me a poor grade!” could have crossed his mind. Such problems could have been alleviated by hiring external specialists to handle the investigation and decision. Consider as comparison a real trial where a witness is employed as a house-keeper by the DA handling the case…

The problem of organizations sweeping their problems under the rug, has probably not featured in my previous writings to any notable degree. A few words on the topic*: There are many types of problems that can arise when there is too little distance, objectivity, self-criticism, whatnot, present in how an organization deals with complaints and internal problems. The most obvious is that it might be so keen on preserving its imagine towards the outside world that it deliberately does not address problems in the appropriate manner. However, we also have to consider constellations like a superior receiving a complaint about an employee with whom he has developed a friendship, an investigative board containing people with personal ties, a biased treatment due to the feeling that that the target of a complaint is “one of us” and the complainer is “one of them”, the target of the complaint being able to influence the proceedings through inside connections (e.g. through giving someone false verbal information that the complainer never even knows of, let alone has an opportunity to refute), etc.

*Since I am filling a deficit, I will remain mostly abstract. If we look at events in the series, I can point to e.g. the illegal failure to upload certain complaint acts to a public server, an attempt to shut-down an independent investigation/documentary, when it threatened to put the school and/or some staff members in a poor light, suspensions (detentions?) being handed out for potentially (depending on interpretation) having critized the principal, …

A particular disastrous example from my personal experiences, where problems were almost guaranteed and remedies highly unlikely due to a massive conflict of interest: Being faced with a blatant breach of contract, I simultaneously sent a bill to the perpetrator and contacted its trade association with a complaint and a request for intervention. In a horribly misguided system, this trade association on the one hand provided arbitration, certifications of quality, and similar, on the other legal service to its members. The result was that the perpetrator took the bill, sent it to the legal branch of the trade association, which immediately gave the opinion that the bill was void and all related claims baseless*—and thereby tied the hands of the rest of the organization with regard to my complaint and any chance of intervention—if another branch had given support to my complaint, it could have caused severe credibility problems for the legal branch, had I taken legal action to receive payment.

*Beware that such “opinions”, by their very nature, have no actual legal value, give little information on the true estimation of the involved lawyers, and cannot, seeing that the lawyers at this juncture only know a fraction of the information, be a complete legal evaluation. To act in his client’s best interest, a lawyer will have to officially side with said client in a near blanket manner, even when the facts at hand, relevant law, and his actual opinion would go in the other direction. There are cases where the situation is so clear, that he is forced to chose another first official stance than a (real or metaphorical) “not guilty”; however, this is rare. The result is that irrespective of how well or poorly founded the complaining party’s claims are, the legal branch would have started with a blanket rejection, and the hands of the trade association would be tied. The complaining party is, almost by necessity, wasting time by approaching such a trade association.

Correspondingly, any organization who wants its complaint management to be taken seriously, must take steps to minimize such problems (a complete prevention is likely not possible). This could include e.g. making sure that there is a special complaints branch, that supervisors/investigators/whatnot with too strong ties to the target of the complaint recuse themselves, that external helpers are brought in (especially when larger amounts of money are concerned, the heads of the organization are involved, or the matter is otherwise unusually important), … While the presumption of innocence must be preserved in terms of treatment and consequences, the potential guilt must also be kept very clearly in mind during any investigation.

(A more specialized post on the misbehavior of German governmental institutions and their blanket rejection of any type of criticism might follow, especially with an eye on the IRS, the incompetence of which is currently again costing me a load of time. It appears to be a universal law that the more incompetent an organization is, the less willing it is to accept criticism.)

A few words on the final scenes of the series:
After his acquittal, Dylan goes through a brief high and then faces repeated disappointments, including that a very hostile* teacher, who had pushed heavily against him, and even (very incorrectly) attributed the crime as directed mainly against her, personally, failed to give the type of apology that he had pictured. He now misguidedly does commit an act of vandalism against her, by painting a penis on her drive-way.

*Her hostility is not unreasonable, considering their previous history.

It follows a brief sequence on how the expectations of others, the roles we have been pushed into, and similar, can lead to poor decisions, even deliberate attempts to fulfill negative expectations—Dylan thought that others saw him as a villain and correspondingly behaved like a villain. While this is likely only partially true, there are at least two thought-worthy aspects to this issue. Firstly, that we should be careful with our expectations of others and the effects they can, at least sometimes, have. Secondly, that we should beware of potential influence from others through expectations, that we should deliberately counter such expectations (at least when negative), and that we ultimately must take responsibility for our own actions, even if they arose under such influence.

In a disturbing parallel to a recently discussed real case, it is claimed that the police brought him away in handcuffs in the middle of the night, over something as trivial* as a this. Now, I do not know whether this could have happened in the real world; however, I re-iterate how important it is that law enforcement act in proportion to the crime. Not only could this easily have waited until the following morning, it might even have been prudent to just ask him to come to the station at a given time. While I do not agree with the practice of some law enforcements** of letting all crimes below a certain level just slide, this is one case where the main issue might even be considered a civil matter between the two: He pays damages, apologizes, promises to never do it again, and we call it a day.

*To be contrasted with the original vandalism, were a figure of a hundred thousand dollars of damages was mentioned. In the act he actually committed, the cost of cleaning or repairing the drive-way is unlikely to exceed a few hundred dollars, possibly being far smaller.

**Including, in my impression, the German police.

A few more thoughts on lies under oath

A recent post ([1]) of mine contained a brief discussion of lies under oath and similar circumstances*, especially with the claim that the accused** should be given some leeway to lie, not just to refuse a statement. Having run this through my head a few times since then, especially while writing [2], a few additional points:

*There are plenty of cases in various jurisdictions where telling a lie is punishable even with no oath present. For the sake of simplicity, I will speak just of “oath” below; however, most of what is said will apply with no, or very little, change to such other situations. Similarly, I will focus on criminal trials below, but at least some of the contents will generalize to other contexts. Notably, if someone is sued for civil damages over a killing (as e.g. OJ Simpson), he must have sufficiently similar rights, lest the civil case forces an incrimination that makes his rights during a criminal trial moot. (However, a more general right to lie during a civil suit should not be inferred: The clear majority of civil suits will give no defensible reason for a lie.)

**I stress that this is not extended to the accuser, be he a claimed victim or a prosecutor, who is in a very different position. Further, that an extension, if any, to witnesses would be restricted to the protection of the accused and others (including the witness, himself) who might be quasi-accused through a truthful statement, with very considerable other restrictions applying. For instance, a mere “he is my friend and I want him to go free” would not be enough motivation to justify a lie; in contrast, the “Jewish friend” example from [1] would. An example like “I did not do it; Y did” shows why I do not give even the accused free reign, just “some leeway”. (But I have not thought this area through sufficiently to give a suggestion for an explicit set of rules. A particular complication is that such rules would likely involve the “justness” of laws involved; with the secondary complications that this area is somewhat subjective and that the justice system will typically consider all laws just or to-be-obeyed-irrespective-of-justness in a blanket manner—even when it comes to e.g. violations of international norms or commonly accepted human rights.)

It is tempting to take the view that if lying is not allowed, trials become that much easier: Confront the defendant with a point-blank question and he will now either confess and we are three-quarters done, or he will reject the accusation and, should he have lied, face harder punishment than if he had told the truth. With sufficiently harder punishment, the guilty will have a strong incentive to tell the truth. There are several problems with this, however, including:

1. That a confession is not necessarily truthful. For one thing, we have situations like Sture Bergwall (cf. [2]); for another, we replicate the problems around U.S. plea bargains*, if the additional punishment for lying under oath is severe enough (and if it is not, the system will not work anyway): Some, possibly many, innocents will proclaim themselves guilty in order to reduce the potential punishment, especially when they know that the risk of conviction is large**.

   *These come quite close to the above situation, the main difference being that a “rebate” is offered to those who confess, rather than a punishment extended to those who do not.

   **Note that this can be the case even for the innocent, be it through misleading evidence, a prejudiced jury, or some other circumstance.

2. That a question could be (deliberately or accidentally) constructed to remove the possibility of expressing mitigating circumstances, be misunderstood by the accused through an imperfect understanding of legal terminology or the laws involved, or otherwise be causing a misleading answer. Consider e.g. the question “Did you in cold blood put the gun against the victim’s head and press the trigger? Yes or no!”: If that is what happened, the answer must be “yes”; however, central points of the longer answer “yes—but he told me that the gun was not loaded” are lost. Even if someone deliberately tried to construct a fair question, or even set of questions, chances are that he would fail.*

   *I am beginning to suspect that similar complications have contributed to the plea system: We start with an abstract plea of “innocent”/“guilty”/whatnot and use the trial to elaborate on the defense’s view (as well as the prosecution’s, etc.), because it is not normally realistic to present this view as the response to a single question. (In my first draft, I listed an “almost invalidation of the plea system” as one of the items speaking against the type of “point-blank question” discussed here, the two being similar in general principle but potentially very different in details and implications. However, by now I suspect that if the “point-blank question” was tried, it would actually, over time, evolve into some variation of a claim of “innocent”/“guilty” with an ensuing interactive elaboration, which basically brings us back to a plea system or something very similar.)

3. This would severely reduce the possibility for citizens to cope with unjust laws and unjustly large punishments, say regarding a ban of certain political opinions.
4. The question of who determines the truth grows even larger than it is today, with ample room for abuse, be it through incompetence or malice. View the courtroom scenes from “Pleasantville” for a good example of the potential problems.
5. Not every faulty claim is actually a lie, and a rule like this could lead to punishment for accidental errors: If the matter seemed too unimportant at the time (e.g. because it did not occur to the perpetrator that his actions could be illegal), if too much time has passed, if the original situation was too stressful, or similar, it is quite possible that someone would be honestly unaware of, or have honestly misunderstood the implications of, an act that he actually committed.

On the other hand, we could have a possible credibility* issue: The point of taking an oath to tell the truth is the implied greater credibility, ideally to the point that whatever is said can be taken to be truth. Allowing lies would obviously reduce this credibility, doing more harm than good to the actually innocent. However, outside of times where people honestly feared divine punishment for violating oaths*, the actual gain in credibility is likely quite low as it is. To boot, it is well-known that memory imperfections and influenceability make most people poor witnesses—even when they do try to tell the truth: No oath can make up for a flawed memory. As a juror, I would almost certainly give less weight to oaths than to the consistency and plausibility of the claims themselves. Possibly, also to perceived credibility, impartiality, whatnot of the witness. (My reservations arising from the knowledge that it is very easy to misjudge people, especially when having no individual base-line for comparison, and the relatively weak correlation between apparent confidence and e.g. being truthful or being factually right, between apparent and actual friendliness, etc.)

*Indeed, in my impression, the taking of oaths is a legacy from a time where trials needed to be settled mostly through the credibility of the involved parties and their witnesses, due to factors like a complete absence of forensic science, the need to wait for months until a traveling court came by, whatnot. (As an aside, with the growing means of manipulating evidence and the near uselessness of digital evidence, we might eventually move back in this direction.)

A way to partially resolve these issues, without allowing lying, is to strictly forbid a certain type of question (e.g. “Did you shoot him?”), and, going by TV, this might actually partially be the case in the U.S. However, I am skeptical as to whether this would allow the same degree of protection.

As an aside, some of the above discussions and [2] also point to why I strongly believe in statutes of limitation*, even for e.g. murder, and that the common trend to increase or abolish them is a sign of barbarism, not civilization: To, say, put someone in court for a murder that took place fifty years earlier more-or-less guarantees that memories will have been distorted or lost—for instance, what accused can say what he did at a certain day fifty years earlier, let alone at what time. Outside of the main topic, it also severely increases the risk of physical proof being destroyed or contaminated, alibis and other witnesses dying, etc.—usually in a manner that one-sidedly favors the prosecution, which could document evidence and testimony shortly after the murder, while the innocently** accused might not even have heard of the event until said fifty years later and might now have to drum up a defense out of nothing. For sufficiently young perpetrators (who are guilty) relative the time passed, we might also have to consider factors like changes as a person over the intervening time—is it really right that a ninety-something is dragged into court because he served in a Nazi extermination camp when he was twenty? At such extremes, it seems less like justice to me and more like vengeance—or even abuse of the justice system for political gains.

*Exactly what limits for what crimes is a too big question for this post, with the need to carefully judge the severity of the crime, the options for the investigation, chance of new evidence, whatnot, vs. fairness towards the suspect. For murder, I could imagine that we land somewhere between five and twenty years, but where in that wide interval would be pure guesswork. (A deeper analysis would also need to consider the possibility of waiting periods and extensions, and possibly other exceptions to a plain limit.)

**Obviously, laws around statutes of limitations must accommodate the presumption of innocence. The common blanket reasoning that there should be no statutes of limitations, to ensure that no guilty party will go unpunished, is not compatible with this principle. Generally, many of the problems with debates around law enforcement and the justice system, including e.g. surveillance, go back to a too great focus on “getting the bad guy” and too little regard for the danger of getting the innocent instead. (As is likely clear from my recent posts, I am very aware of that danger.)