P.L.A. - A Journal of Politics, Law and Autism

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Saturday, May 24, 2003
George Bush’s Perverse View of Juries

George W. Bush has a perverse view of juries. Some people think that juries make essentially random decisions and have no trust in the accuracy of jury verdicts. Others, myself included, think that juries generally find the truth. George W. Bush is firmly in both camps.

While Governor of Texas, Mr. Bush showed an abiding faith in the unerring accuracy of jury decisions in death penalty cases. While Governor more than 130 death penalty cases came before the Governor. He granted a reprieve in exactly one case. Mr. Bush has said that he is:
confident that every case that has come across my desk -- I'm confident of the guilt of the person who committed the crime.

Salon reports that Mr. Bush was so confident of the accuracy of jury decisions in death penalty cases that as Governor he spent less than 30 minutes reviewing each such case.

Mr. Bush has much less confidence in the accuracy of the verdicts of civil juries. Mr. Bush has proposed that politicians and not jurors decide the amount of non-economic damages due to the most seriously injured victims of negligence.

Mr. Bush has said that poor jury decisions are “devastating the practice of medicine” and ruining many an “honest business.”

Mr. Bush’s belief in an almost Biblical inerrancy of death penalty juries but his complete lack of faith in civil juries is exactly backwards.

It is obvious, of course, that juries do not make perfect decisions. One of the most important factors leading to jury error is imperfect information. Like any decision-maker, jurors must rely on the information available to them. Since jurors are prohibited from performing independent investigations, they must rely on the information presented by the parties through the lawyers.

If a teacher does not cover a subject included on a test, the failure of the students to know the material is the fault of the teacher and not the students. If lawyers do a poor job of discovering and presenting information needed by a jury, it is the fault of the lawyers and not the fault of the jury.

We often hear that persons convicted of crimes are later exonerated by DNA evidence. Does anyone think that those convictions would have occurred had the juries been provided with the exculpatory DNA evidence at trial? The failure in those cases is in the quality of the information presented to the jury and not in the jury’s decision-making process.

The chances of a jury reaching a just result increase when both sides have highly skilled lawyers with the resources needed to investigate, prepare and present their side of the case. Conversely, when one side has experienced, highly skilled lawyers with plenty of resources and the other side has overworked lawyers of lesser skill operating without needed resources, the chances of a just verdict diminish.

The chances of both sides having highly skilled advocates with adequate resources is far higher in big money civil cases than in criminal cases. Thus, the chances that juries will make wrong decisions as a result of having incomplete information is much higher in the criminal arena than on the civil side.

Mr. Bush is concerned that juries are unfair to medical malpractice and other civil defendants. The defense of big money civil cases usually falls to insurance companies. Insurance companies have an army of investigators, adjusters, jury selection consultants and expert witnesses at their disposal. They have the resources to conduct mock trials, focus groups and polling. They have a stable of highly skilled, experienced trial counsel. It is highly improbable that juries make incorrect decisions because civil defendants do a poor job of investigating, preparing and presenting their side of the case.

The situation in criminal cases is quite different. Criminal defendants do not have the resources of huge insurance companies supporting their case. The defense in criminal cases usually falls either to overworked and underpaid public defenders or to less experienced and less skilled lawyers willing to take low paying criminal appointments.

In one Texas murder case, the defense attorney slept through portions of the trial.

Some advocates point out that the defense lawyers in Gary Graham’s Texas murder trial failed to even question a number of witnesses. That simply would not happen in a large civil case.

In Odell Barnes’ Texas capital case, defense lawyers neglected to conduct any scientific tests on crucial blood and semen evidence that allegedly linked him to the crime. That would not happen in an important civil trial.

Andrew Cantu was executed by the State of Texas despite the fact that, as Salon reports:
(He) ended up representing himself after two lawyers assigned to his case withdrew and a third never even interviewed the defendant, claiming he didn't know where to find him. (He apparently didn't try death row.) Cantu was executed without either state or federal habeas corpus review of his claims.

My experience is with civil juries. That experience convinces me that juries almost always make good decisions. I have yet to try an important civil case in which the defense lawyer slept through the trial, failed to interview witnesses or failed to present crucial evidence.

A person whose experience is only on the criminal side could feel differently. Overworked and underpaid lawyers without the resources to investigate, prepare and present a case may not give juries the information needed to make an accurate decision. That increases the likelihood of jury error.

George Bush’s blind faith in the inerrancy of death penalty juries combined with his distrust of civil juries is perverse.

Today’s Tour 5/24/03

Jane Finch at the Daily Rant asks that a little perspective be brought to the news about SARS and other “doomsday diseases.” Jane points out that SARS, West Nile fever and Mad Cow disease have resulted in a total of 1,043 deaths worldwide. While those deaths are tragic, the perspective Jane asks for demands that we note that the National Safety Council predicts 500 highway deaths this weekend.


Andrew Northup recounts his record as a fighter. He claims a lifetime record of 4-8-1. As that record attests, as a fighter the Poor Man is a superb writer. From my perspective, the best record would be 0-0-0.


Liberal Oasis thinks that the recently passed tax cut will work against Bush and for the Democrats. LO quotes Mort Kondracke, of all people, saying:
This is supply-side, trickle-down, Republican economics. And we’ll see if it works. Bush has no grounds to make any excuses if it doesn’t work. And he has no grounds to blame the Democrats if it doesn’t work. So it’s all on him now.

Wampum (please change your bookmarks and links to her new abode here) notes that to meet the job growth projections the administration used to sell the tax cut, job growth in the next 18 months would have to exceed job growth we achieved in the boom times of the Clinton economy by 38,000 jobs per month.

That goal seems quite unlikely given the current sluggishness of the economy. Liberal Oasis may be right.

Friday, May 23, 2003
Today's Tour 5/23/03

National Geographic has the first photographs of Earth taken from Mars. I love stuff like that.

Soundbitten takes a look at the suits filed by the producers of Michael Savage’s radio program against three web sites. The suit may be counterproductive in that I had never heard of MichaelSavageSucks.com or SavageStupidity.com until the suits were reported.

How hard would it be to be a Republican Congressman running for the Senate in a Southern state and also be an in the closet gay? I am not sure that Mark Foley (R- Fla.) is gay but his recent press conference seemed like a lot of tightrope walking to me. Atrios reports.

Charles Kuffner has excellent and complete coverage of the fallout from Tom Delay’s attempt to redistrict Texas, the Democrats run for the border to prevent a quorum, and the Republican’s efforts to track them down. It appears that the Republicans are now subject to a criminal investigation. Please see Charles’ posts here, here, here and here.

Charles also has a nice baseball post. That is good blogging especially for a bridge player.

Thursday, May 22, 2003
Eliminate Junk Science --- A Tort Reform Proposal

The Bush administration is adamant about the need for tort reform. In its view, frivolous lawsuits are at the core of a breakdown in the civil justice system. Last August, the President made clear that he believes frivolous suits are at the heart of the problems with the tort system:
Junk and frivolous lawsuits can ruin an honest business. In this state, the lawsuit industry is devastating the practice of medicine. Too many frivolous lawsuits in this state are being filed against doctors. That's a fact. And too many jury awards are out of control.

Given that the President feels that frivolous suits are at the heart of the need for tort reform, one might expect his tort reform proposals to directly address curbs on frivolous suits. The President’s central proposal, however, a cap of $250,000 on non-economic damages in medical malpractice cases, has at most a tangential relationship to curbing frivolous suits.

Yesterday, I put forth a proposal to directly address the issue of frivolous medical malpractice suits by requiring that before such a suit is filed, the plaintiff file a sworn affidavit from a doctor pointing out at least one instance of negligence on the part of the defendant. That proposal would eliminate suits that are frivolous because the legal element of “breach of duty” is lacking.

Another essential element of any tort case is causation. The defendant is liable to pay damages if but only if his or her acts or omissions “proximately caused” the plaintiff’s damages.

Many tort reformers believe that plaintiffs’ attorneys confuse juries with baseless and unproven “scientific evidence” with the result that juries award damages in cases in which the causal relationship between the defendant’s conduct and the plaintiff’s injury is absent. As one hyperbolic web site puts it:
Personal injury may use junk science to bamboozle juries into awarding huge verdicts. Large verdicts may then be used to extort even greater sums from deep-pocket businesses that may be fearful of future jury verdicts.

If the use of junk science to prove proximate cause results in the success of frivolous lawsuits, perhaps the administration’s tort reform proposals should be directed at curbing the use of junk science instead of proposing that insurance companies not have to pay full compensation to seriously injured persons in meritorious suits.

It does not seem difficult to fashion a reform that would curb the use of junk science in the courtroom. Imagine a rule in which before expert testimony on a scientific issue is presented to the jury, the judge first holds a hearing. At the hearing, the judge takes testimony to make a “preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue.”

In making that determination, the judge would consider “whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.”

If the proposed scientific evidence fails that test, the jury would not be permitted to hear it.

That system would go a long way to eliminate the use of junk science in the courtroom. If tort reformers are correct that the use of junk science is a large problem, using the standard set forth above would certainly curb such abuse.

The standard set forth above is not original. It is the standard set forth by the Supreme Court in its decision in Daubert v. Merrell Dow, 509 U.S. 579 (1993).

That rule has applied to all scientific evidence offered in the Federal Court system for the last decade. The loophole in the Daubert decision is that the rule applies only to cases brought in Federal Courts. Actions brought in the various state courts are not subject to the Daubert rule (unless an individual state adopts the rule).

If the administration is serious about curbing frivolous suits and if the tort reformers are right that the use of junk science permits frivolous suits to succeed, applying the Daubert rule to state court actions seems a logical step.

Some may oppose the imposition of the Daubert rule by the federal government on state courts on federalism grounds. The federalism concerns inherent in imposing the Daubert rule on state courts, however, is no greater than the imposition caused by a national damages cap.

The Bush administration uses the rhetoric of frivolous lawsuits to promote a policy that would not curb such suits. The disparity between its rhetoric and its policy proposals suggests that curbing frivolous suits is less important to the administration than protecting insurance companies from having to pay full compensation to seriously injured victims of negligence.

If we wish to reduce the number of frivolous suits, it is not difficult to find ways to do so. The administration simply has a different agenda.

Today’s Tour 5/22/03

One of the functions of a blogger is to direct readers to posts on other sites that are interesting, amusing or insightful. Unfortunately, I have been far less than diligent in fulfilling that role. To rectify that deficiency, I plan to regularly (but perhaps not daily) link to things that I think are worth your time. Those posts will be entitled “Today’s Tour.” Please be forewarned that my idea of interesting, amusing or insightful may be a bit eclectic. That said, we liked the following:

Wampum reports on a new study of a possible link between the MMR (Measles, Mumps Rubella) vaccine and autism. Please note that the MMR vaccine and its possible connection to autism is a completely different issue and has nothing whatsoever to do with a possible link between thimerosal and autism.

Thimerosal is a mercury-based preservative that was placed in multi-dose vials of some childhood vaccines until 1999. Thimerosal is not, has never been, and cannot be included in the MMR. The MMR is a live organism vaccine. The inclusion of mercury-based thimerosal would kill the vaccine.

If the MMR is causing autism, it is through a completely different mechanism than mercury poisoning. Many reporters confuse the two issues and it simply drives me nuts.

Sam Heldman identifies the stupidest thing he has ever read. If it is not the stupidest thing I have ever read, it certainly made the finals.

Via Tom Spencer, I located this Public Opinion Watch post. It reviews the latest poll numbers and concludes that, in 2004, “all these numbers suggest that the Democrats have an excellent shot at the incumbent, despite the GOP’s formidable strength in the national security area.”

Mark Kleiman has detected an “outrage gap.”

Max Sawicky has a number of interesting posts on the progress of the proposed tax cut.

Julia has a great link and some comments about the marketing of Homeland Security.

Wednesday, May 21, 2003
Curbing Frivolous Lawsuits – A Tort Reform Proposal

North Carolina’s senior Senator and Presidential candidate John Edwards had an op-ed in the Washington Post (link via Oliver Willis) concerning proposals to reduce premiums for medical malpractice insurance. Edwards contends that three elements are needed:
That real solution has three elements. Most important, we need to crack down on price gouging by the (insurance) industry. We also need aggressive action against frivolous lawsuits that don't belong in court -- not against the serious lawsuits that bring help to the most badly injured. And finally, we need to reduce the number of medical errors, many made by a very small fraction of the medical profession.

I wish to discuss the second of Edward’s three elements, namely “aggressive action against frivolous lawsuits that don’t belong in court.” In particular, I wish to recommend a specific proposal that would reduce the incidence of frivolous suits in the area of medical malpractice.

A tort action has four basic elements. Those elements are duty, breach, causation and damages. A plaintiff may recover damages for personal injuries if, but only if, the defendant owed a duty to the plaintiff, the defendant, through negligence or intentional act violated that duty and the violation of the duty caused injury to the plaintiff.

Some doctors believe that tort system fails to honor the requirement of a breach of duty. Doctors believe that if a patient gets a bad medical result, the doctor is subject to being sued regardless of whether he or she actually did anything wrong.

A medical malpractice suit that lacks evidence that the defendant doctor did something wrong would indeed be frivolous. If we assume that doctors are correct and that such suits are common, the way to eliminate frivolous suits is to require evidence of a doctor’s negligence before the suit is filed.

In medical malpractice suits, breach of duty is shown by evidence that the doctor performed below the standard of care. That evidence takes the form of expert testimony of what constitutes the standard of care and testimony that the acts or omissions of the defendant doctor violated the standard of care. The expert giving such testimony must, of necessity, also be a doctor.

If a fellow doctor is prepared to testify under oath that the defendant doctor made a mistake and that the mistake violated the standard of care, what is the chance that the case is actually frivolous? I suggest that the answer is “very small.”

Similarly, if the medical malpractice plaintiff is unable to present expert testimony from another doctor to the effect that the defendant violated the standard of care, the chance that the case is frivolous is substantial.

A common sense solution to the problem of frivolous medical malpractice suits is simply to require that evidence of the defendant's negligence be produced before the filing of the suit.

John Edwards argues for one means of requiring evidence of negligence as a prerequisite to filing a medical malpractice suit:
Before a lawyer can bring a medical malpractice case to court, we should require that he or she swear that an expert doctor is ready to testify that real malpractice has occurred.

In Georgia, the General Assembly has already gone Edwards one better. Instead of having the lawyer simply verify that a doctor will, at some future date, testify as to the defendant's negligence, Georgia law requires such testimony be taken before the suit is filed.

A Georgia statute (OCGA 9-11-9.1) requires that every suit for medical malpractice include an affidavit of a physician. The physician’s affidavit must specify that he or she has reviewed the relevant medical records and has determined that the defendant doctor violated the standard of care. The affidavit must identify at least one negligent act or omission of the defendant. Any medical malpractice suit filed without an affidavit of a physician is subject to dismissal.

Thus, in Georgia courts, no doctor is ever sued for malpractice unless another doctor has already testified, based on a review of the medical records, that the defendant doctor was negligent.

The affidavit requirement of Georgia law is a common sense way to reduce the number of frivolous suits. It accomplishes that goal without limiting the right of the most badly injured victims of medical malpractice to receive full compensation.

If the purpose of tort reform is to actually reduce the number of frivolous suits, the proposal outlined above is a good first step. If the purpose of tort reform is simply to prevent insurance companies from having to pay full compensation to injured people, a cap on non-economic damages works better. Mr. Edwards proposes a policy to accomplish the former. President Bush proposes a policy to accomplish the later. Which of the two actually wants to reduce frivolous lawsuits?

Monday, May 19, 2003
Annika Sorenstam Could Beat Bobby Jones

Much ado has been made over the fact that the best woman golfer in the world, Annika Sorenstam, will tee it up in competition with members of the men’s professional golf tour at this week’s Colonial Open.

Some players have complained that Sorenstam obtained entry into the event through a sponsor's exemption and that her presence in the field will deprive a more deserving male player of the opportunity to compete. I think that view is misguided.

One argument made in opposing Sorenstam’s entry in the Colonial is that she simply does not hit the ball far enough to compete against the men. I do not know whether or not that will prove to be true. The statistics from the PGA and LPGA Tour do not compel a conclusion either way.

Sorenstam ranks second on the LPGA Tour in driving distance averaging 275.4 yard per drive. LPGA statistics may be found here.

Her average would rank 162nd on the Men’s tour. PGA Tour statistics may be found here. That suggests that Sorenstam may in fact be overmatched, as most of her male competitors will be able to hit the ball significantly farther than Sorenstam.

Ranking 162nd in driving distance is not conclusive of Sorenstam’s ability to compete. A number of male professional players seem to do okay driving the ball about the same distance or shorter than Sorenstam. Scott Verplank was a member of last year’s US Ryder Cup team. He averages 273 yards per drive. Len Mattiace averages fewer yards per drive than Sorenstam and he finished second in this year’s Masters.

Sorenstam drives the ball farther than Jose Maria Olazabal (and it is virtually impossible not to drive the ball straighter than Olazabal) and he won two majors. Bernhard Langer, Corey Pavin, Mark Brooks, John Cook, Brad Faxon, Larry Mize, and Loren Roberts have all either won majors or played in the Ryder Cup despite averaging fewer yards per drive than Sorenstam.

Sorenstam will be playing under tremendous pressure this week. If Len Mattiace fails to make the cut, nobody will notice but if Sorenstam plays badly, it will allegedly prove all sorts of things about gender roles. I wish her well.

As to whether or not Sorenstam should have received a sponsor’s exemption, we suggest a thought experiment. Suppose that by some miracle a male golfing icon from the past, say Bobby Jones or Walter Hagan or Gene Sarazen returned in their prime and sought entry to the Colonial on a sponsor’s exemption. Would anyone complain that they were taking the place of a more deserving modern male player?

Evidence from other sports suggests that women athletes of today are equal to or superior to the best male athletes from the thirties, forties and fifties

In 1936, Jesse Owens put the lie to Hitler’s Aryan master race ideology by dominating the Olympics held in Berlin. Among his successes was a Gold Medal in the 100-meter dash. Florence Griffith-Joyner’s women’s world record time of 10.49 seconds in the same event would have earned her a medal in the 1936 men’s Olympic competition and would have bested all German competitors. If Hitler suffered a humiliation by having a black man beat all Aryan competitors, imagine the humiliation had Germany’s fastest men lost to a woman.

In May of 2000, Inge de Bruijn of the Netherlands swam the 100 meters freestyle in 53.80 seconds, setting a women’s world record. That time would have won the Gold Medal in the men’s competition in every Olympics until American Don Schollander swam it in 53.40 in the 1964 Games.

One of the greatest male distance runners of all time was Emil Zatopek of Czechoslovakia. In 1948, he won the 10,000 meters race at the London Olympics in a time of 29.59.6. In 1993, Wang Junxia of China set a women’s world record by running 10,000 meters in 29.31.78.

I do not know whether or not Annika Sorenstam can compete successfully against current members of the PGA Tour. I hope that she can and will as it would be a great story. If female runners and swimmers of today are as good as their male counterparts of the 30s, 40s or 50s, there is no reason to think that golfers would be any different.

It seems very likely, based on the record of women athletes shown above, that Sorenstam plays golf as well as the best men players of the thirties, forties or fifties. Thus, it seems to me very likely that Annika Sorenstam plays golf at least as well as such golfing icons as Bobby Jones, Walter Hagan, Gene Sarazen, and perhaps Byron Nelson and Ben Hogan in their primes.

Unless the current male professionals would object to a sponsor’s exemption being given to a reincarnated Bobby Jones, they should just shut up about Annika Sorenstam and play. If they finish behind Sorenstam, they can just rationalize it by remembering that they would also have lost to Bobby Jones.

The Space and Rocket Center

I just returned from a weekend Cub Scout camping trip with my older son (nine years old). The United States Space and Rocket Center in Huntsville, Alabama is a great place. The Center is affiliated with the NASA’s Marshall Space Flight Center, also in Huntsville, where many parts of NASA vehicles were designed, tested and built.

The museum has a number of great exhibits including an Apollo capsule that orbited the moon and returned, heat tiles for a space shuttle, a mock up of the space station, a number of different rockets, an Imax Theatre (showing a great movie about the building of the International Space Station), and, most importantly, a number of simulators that kids get to try. It was a blast.

Cub Scout camping, however, would be more fun if 1) it did not rain buckets all weekend; 2) a tornado warning had not interrupted our museum tour; and 3) flash flood warnings had not scared me away from the campground (when we bolted for the safety and comfort of a hotel room, at least one brave PLA reader was undaunted and vowed that he and his family would brave the elements). If I had anyone on my “needs to be insulted” list, I would have sent a postcard with Jimmy Buffett’s variation on a traditional message: “The weather is here, wish you were beautiful.”

Many of the museum exhibits speak to the dedication and courage of the men and women who volunteered to venture into space. Their dedication and courage, while great, was easily matched by our tour guide. She was young, cheerful, incredibly well informed and very, very pregnant. She took questions from the Cub Scouts with good humor and the skill to use each question as a springboard to get to the next point she wished to make.

At about the same time the tornado warning halted our tour, she went into labor. In my book, guiding a Cub Scout tour through a museum during a tornado warning while at the end of the ninth month of pregnancy takes more dedication and courage than boarding a rocket bound for outer space.

If you are ever in the vicinity of Huntsville (Nashville, for instance), the Space Center is well worth the time and effort of a visit. The exhibits are splendid and if our experience with one tour guide is any indication, the employees are exceptional.