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Friday Roundup

Information society.  Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law.  We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea whether a curative instruction actually works. 

Not that we don't try.  We do use data in bond hearings and sentencings, because risk assessment is the new Big Thing.   The tools for evaluating that data go by various names, like COMPAS or PSA.  They're put out by a company called Northpointe, and they will predict how likely a defendant is to skip bail or commit another crime.  That's very helpful data to have.

Problem is, there's a pretty good chance it doesn't work.

You can read about it here, but the upshot is that it's got a racial bias, the results from the 137 questions on the assessment could just as easily have been drawn from only two questions, and the predictions are no better than those made by people with little or no criminal justice expertise.

Data is useful, but you've got to be careful with it.  There's a tendency among people who rely too much on data to believe that anything significant can be measured.  The corollary of that, of course, is that anything which can't be measured is not significant.  And that's how we wound up using attrition of the enemy as a measure of success in Vietnam, which is absolutely bone stupid in a guerilla war. 

But that's another topic.

You'll be relieved to know that Ohio does not use any Northpointe products.  They do use a risk assessment tool, called, appropriately ORAS, and if you can't figure out what the O stands for, then you're probably pretty confused by now anyway.  It was developed by a professor from the University of Cincinnati. 

I have no idea what tests have been done to determine its accuracy.  But I'm going to check into that.  Stay tuned.

Talking about money.  I've gotten the impression that the courts are becoming increasingly intolerant of overreaching prosecutions, and I think that's starting to sift down to overreaching by the police or other government agencies.  Last year I wrote about a case where the 6th Circuit affirmed a million dollar verdict against a detective, concluding that even a minimal investigation into the claims of a child claiming he'd been molested by the school counselor would have shown them to be false.

Last week it was the 9th Circuit's turn.  The Demarees went on vacation in San Diego ten years ago, and while there they took a lot of pictures of their three daughters, then 5, 4, and 1½, including some of them bathing, and one of the three lying on a towel with their bare buttocks exposed.  They dropped the pictures off at WalMart, the WalMart employee decided that it smelled of child pornography and ratted them out to the cops, and the upshot was that the people from Children's Services took the kids away.

The decades-old discussion of the exclusionary rule has often taken a side route into the question of what alternative remedy would work to deter police misconduct.  Filing a lawsuit against the police is often mentioned, but the nature of these cases don't bode well for plaintiffs.  The guy who's suing because he spent three months in jail before the judge tossed the two keys of heroin the cops found in the trunk of his car because of a bad traffic isn't going to get much love -- or money -- from a jury.

But a wrongful investigation case?  You to a client who was innocent, and who was harassed by the Big Bad Government.  Cases are about stories, and I like that story. 

And deterrent value?  Believe me, seeing one of their fellow detectives tagged with a million-dollar judgment that maybe the city will cover or maybe it won't, and that can never be discharged in bankrupty...  Now, that's a deterrent.

A lawyer of distinction.  I'm designated as a SuperLawyer by some group which calls itself, appropriately, SuperLawyers.  Apparently, the main benefit of that is that I can buy advertising, print or on the web, from them.  I can also buy a "profile" on certain websites, and did; after eighteen months and the expenditure of a sum sufficient to fund the invasion of a Central American country, I had six phone calls and zero clients to show for it.

I'm not sure how rigorous the selection process was, either.  Oh, I'm good, but on my trip down to Cincinnati last year to argue a habeas case on ineffective assistance, I learned that the lawyer whose work I was castigating had just been accepted as one of my peers in SuperLawyers.

And then I read this blog post about an organization called Lawyers of Distinction.  The upshot is that LoD, after a "rigorous" vetting process, offers you a membership for anywhere from $475 to $775 a year.  Then you can say you are a Lawyer of Distinction, ranked among the top 10% of all American attorneys.

About that "rigorous" vetting process.  The blogger submitted a nomination for his kid's pet chicken, Zippy DeShicken, along with an email for Zippy.  Sure enough, the next day Zippy got a pitch for one of the "memberships."  LoD didn't even bother checking out Zippy's website, www.deschikeenlaw.com, which of course did not exist.  This wasn't an isolated incident; as the blogger for TribTalk explains in his post, "My dog is better than your lawyer," his canine friend, S. Roosticus Fischer, is a fixture in the top ranks of this country's lawyers.

So if you get an email from me and see that SuperLawyers tag -- they gave me that for free -- and you want to chuckle, I don't blame you.

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