Entries categorized "Books"

A History Of The "Lie Detector"

I doubt I will ever forget the polygraph exam that I failed back in the early 1980s. I sat huddled with an examiner at the headquarters of the CIA. I was peppered with questions about drug use and whether I was gay. I answered truthfully, but not to the satisfaction of my examiner. Result? I never became a spy.

That was no loss to the nation's security, and it probably kept me from a career path that would have landed me in prison for insubordination or worse. But I've never trusted the machines since. Ken Adler's The Lie Detectors: The History of an American Obsession (Free Press: New York, 2007), helped put that mistrust in perspective.

It is a truism to say that science has transformed our understanding of the world and of ourselves. In the early twentieth century, it was tempting to say we were simply the sum of our physical reactions to stimuli. Thus, a body could be read, and concepts, such as truth, could be given a corporeal meaning. And if the natural sciences could work such wonders, then couldn't the social sciences reorganize such things as law enforcement itself? Technique was the rage.

August Vollmer, the former chief of the Berkeley, California police department, harnessed the energies of John Larson and Leonarde Keeler. Larson, a Ph.D. cop with an inquiring mind put together the first working "lie detector." Soon Keeler patented a polygraph and was everywhere at once trying to ferret out the truth. In time, Larson soured on the reliability of polygraphs, but Keeler pressed on.

Today, polygraphs are almost never admissible in a court of law. Apparently, only New Mexico permits them with some regularity. Even though the machines arguably satisfy the Daubert test for the admission of expert testimony, courts are reluctant to permit their admission, fearing that jurors will be seduced by the allure of men and women in lab coats spouting truths that have been detected in blood pressure, respiration rates and sweat.

But the device is still common in law enforcement. Not long ago, one of my clients was required to pass a polygraph to obtain the benefit of a plea that would permit him to remain in the United States to support his famiy. He passed, after several tense sessions. I felt helpless as his lawyer watching his frustration with the examiner. What were we measuring?

Polygraphs are not beyond misuse in law enforcement hands, which comes as no surprise. Consider the case of Wen Ho Lee, accused of pilfering nuclear secrets. Examiners badgered him and then leaked to the press that he had failed the exam when, in fact, the exam was merely inconclusive. Even al Qaeda offers training on how to beat the exam. www.AntiPolygraph.org. According to Adler, the device is merely a tool, a psychologically kind form of the third degree.

Efforts to replace ordinary jurors with infallible means of determining when a witness is truthful continue. Neuroscientists now chart brain waives trying to locate the spot at which our brains register deception. But neuroscience is no better than physiology in dissecting our sense of self.

Adler's book is fascinating, but it did not inspire me with the dread of the polygraph that Adler shares. A polygraph is a tool. A flawed device with strengths and limits, much like other tools. It has its uses.

For all its strengths, this book is slightly out of focus. I care less about petty rivalries between Larson and Keeler, and whether another polygraph pioneer lived happily in a menage a trois, than I do about what science can contribute to the truth-finding process. To say, as Adler does in his epilogue, that "to deceive is human," is merely to repeat another truism.


Collateral Consequences of Conviction

Once a client has done his time, he has paid his debt to society, correct?

Wrong. A felony conviction is the gift that keeps on giving. A Scarlet F can transform a life permanently.

What can be done to eliminate or mitigate the consequences of a felony conviction?

Start by ordering this book: Relief From The Collateral Consequences Of A Criminal Conviction: A State-By-State Guide. The book was published in 2006 and was written by Margaret Colgate Love, a former federal prosecutor. Here's the publisher's blurb on the book.

You can order it here

"The guide is the first comprehensive survey of U.S. laws and practices that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction. It begins with short analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set-aside, certificates of rehabilitation and laws that limit consideration of conviction in connection with employment and licensing. The heart of the guide is its detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Includes charts allowing easy state-to-state comparisons. It is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system."

I am ordering mine today.


How Rebellious Are You?

How many of the American Library Association's list of most frequently challenged books have you read?  I've read:

Of Mice and Men
The Giver [If you haven't done so, read this book.  If you enjoyed The Little Prince, then buy this book today.]
Sex by Madonna
Killing Mr. Griffin
To Kill A Mockingbird
The Pigman
Flowers for Algernon
Brave New World
The Anarchist Cookbook
Private Parts

Not enough controversy in my library.  I need to read more.  (Hat tip: Yin.) 


A Man Without A Country

It needn't be all doom and gloom and the oh-so-serious wringing of hands. Sure, the world is going to Hell in a handbasket, or is it that we've merely captured today's Hell in a Palm Pilot? But what is to prevent a chuckle at the Apocalypse? Out of nothing and with all that talent, and this, this reeking hulk of a planet lurching no place in particular, this is all you could do? So might Job say to God.

And what of Martians who pee gasoline?

These thoughts are inspired by a short book I recommend with a glad heart. The author by now familiar to all, Kurt Vonnegut. The book, A Man Without A Country, (Seven Stories Press, 2005).

I expected not to like the book. The title offended. Was it going to be another tart serving of the sort of irony that suggests the fear of commitment? Look Ma, no country! Vonnegut is not a favorite of mine. A dozen or so books of his have passed through my hands, and mind, without leaving much of a trace. Why would this be different?

Vonnegut is now 82 and he writes as one surprised to still be kicking. I guess I can identify with that. I turned 50 last month, and, I swear by the gods, the world looks different to me. Where once I clawed, I now peck. Things seem more precious; I am suddenly more careful about the obvious, or, perhaps, simply mindful of the obvious truth that the world can swirl quite well without me.

So I read Vonnegut's ruminations with pleasure, and a smiling sense of recognition. We are killing the Earth, true. We are governed by boobs, true. And, the greatest gift of all, a recommendation of a book on how to recognize folks with personality disorders -- a must for all trial lawyers trying to make a living by sorting the psychic wheat from the psychic chaff in all the chaos that clients bring.

Read A Man Without A Country. Find a rainy Sunday morning sometime and curl up in a corner. Read what a friend has to say about a tightly wound ball with rubber bands snapping all around. A sting here, a chuckle there, the sound of knowing despair coming to terms with the joyous possibility of despair. I loved the book and plan now to reread a man I have apparently underestimated, or perhaps misunderstood.


Best Pre-Law Book: Logic for Lawyers

What's one book I should read every pre-law student should read?  It's a tough question, since the student probably doesn't want to hear you say, "Atlas Shrugged," or "Das Kapital." Chances are, the student wants something that will give her the "big picture," and perhaps even provide her a competitive advantage.

Kerr suggested Glannon's book on Civ Pro. I think that's too narrow, since the book only covers Civ Pro.  If we looked at from a meta level, it does tend to illustrate how legal rules as such apply to the facts as such.  But it's not explicit enough.

I agree that Hayek is a good choice, since its explanation of spontaneous order demonstrates the wisdom of the common law method.  The ship moves slowly, which is good, since it keeps us clear of icebergs.

I also think An Introduction to Legal Reasoning is brilliant.  Sure, it's dense, but it's not as bad as Hegel.  It's valuable because it focuses on the evolution of The Law by using discrete legal issues.  Common law judges address narrow issues.  The law moves incrementally, as Levi demonstrates.  One doesn't ask, up in the air, e.g., whether a seizure was legal.  Courts examine precedent and look for analogous cases.

Rather, one digs for the deeper issue, say, by asking whether a reasonable person in the defendant's position would have felt free to leave.  Then we dig up every case to determine when a person felt free to leave, and when the person wasn't free to leave.  Where do our facts fit in this spectrum of cases?  This seems simple, but it took me about two years to figure out.  Intro helped me get there.

Still, since I can only recommend one book, I must suggest Ruggero Aldisert's Logic for Lawyers. It's heavy lifting.  (And try to find a used one, since a new one is expensive.)  But, sadly, it's necessary: most students are not trained in either formal or informal logic, and fewer still have been trained in the intersection of the common law and informal and formal reasoning.  Odds are that Logic for Lawyers will help everyone. Even someone with instruction in logic will benefit from the book.  Aldisert's application of categorical syllogisms to common law cases is not just enlightening, but life changing.   

According to Aldisert, every case contains a syllogism.  We have a major premise (the broad law), minor premise (our facts) and a conclusion (the application of law to facts).  If our syllogism is fallacious, chances are, so is our argument.

Lawyers, unlike logicians, must prove the argument's premises.  The law isn't always clear on some points, and so we always don't get, "All men are mortal" as our major premise, or "Socrates is a man" as our minor premise.  But many legal rules are clearly established, and so Logic for Lawyers gives us an outline to follow.  First, find those well-established rules.  Second, find out how these rules apply to your case facts.  Third, create a syllogism from them.

Of course, sometimes judges (and Justices of the Supreme Court) disregard logic, as they did in  Morrison v. Olson

The issue in Morrison v. Olson was whether non-executive branch officials could prosecute crimes.  The majority held that separation of powers notwithstanding, a non-executive official could exercise prosecutorial power.  Scalia used a categorical syllogism to show how dishonest the majority's opinion was.  Justice Scalia wrote (emphasis added):

To repeat, Article II, 1, cl. 1, of the Constitution provides:  "The executive Power shall be vested in a President of the United States."

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power [major premise].  It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? [minor premise] (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

Thus, Scalia's syllogism can be summed up:

All executive power is vested in the Executive Branch.
All prosecutions involve executive power.
Therefore, all prosecutions are vested in the Executive Branch.

Period.  The conclusion that the Independent Counsel Statute was unconstitutional must   follow.  Scalia's argument was airtight.  That the majority refused to accept this conclusion demonstrates that Morrision v. Olsonis an example of judicial activism: it was politics, not law. (Incidentally, isn't laying out one's argument in this manner much more persuasive than screaming like a child when others disagree?  In Morrison, the cogency of Scalia's arguments thrashed the majority's opinion more than any sharp rhetoric could have.)

Rather than continue rambling, let me ask for your suggestions.  What's one book every law student should read?


A Fun Read

I don't know many trial lawyers who sleep through the night. Most of us endure nocturnal agonies: The question not asked; the witness not called; the report not understood. Things go bump in the dead of night.

I keep a pile of good books next to my bed. When the midnight chatter comes -- actually it starts at about 2 a.m. for me -- I pick one and read, finding solace in other worlds.

The other night I stumbled on a short gem that I am recommending. Checkpoint, by Nicholson Baker. The book is composed entirely in dialogue form and recounts a conversation one afternoon between two old friends. One has murder on his mind.

I won't say more about the plot, such as it is. The book is scarcely more than 100 pages. The sort of thing you can read before the sun rises and ponder during a judge's charge to the jury.

Baker is a good and reliable read. This is his tenth book. I haven't read them all, but I will. (And a hearty thank you to Vince Valvo of The Connecticut Law Tribune for turning me on to Baker.)


Nothing New Under the Needle

The law prizes finality, and a host of doctrines have evolved over time to assure it. We want the litigation of a case or controversy to come to an end. We even tolerate a certain amount of error in order to assure finality.

But isn't death different? Suppose we send an innocent man to death? Can we tolerate that?

Surprisingly, David Dow, a law professor at the University of Houston and sometime litigator on behalf of those sentenced to death, seems willing to tolerate the death of a few innocents. He declares that focusing on the killing of a few innocent defendants is the wrong question. No, what really bothers him is the injustice of it all.

His latest book, "Executed on a Technicality: Lethal Injustice on America's Death Row," (Beacon Press, Boston, 2005), treads familiar water. Errors are made in capital cases. A failure to investigate can deprive a jury of key mitigating evidence. Raise the wrong issue in a state habeas, and lose the right to fight the issue in federal court. The book would be a good first-week assignment in a course of post-conviction relief in capital cases. It is a good and reliable summary of leading cases written in clear lay terms.

Beyond that, there is little to recommend the book.

I've not met Dow, but were my life on the line he would not be part of the defense team I would select. In his view, a defendant is guilty at least 90 percent of the time. The real issue isn't guilt or innocence, but mitigation. He sounds less like a lawyer than a mitigation specialist.

Like so many anti-death penalty crusaders he is in love with nothing so much as the clarity of his own convictions.  At some level, he seems to prefer the messianic role of savior of the condemnd to that of advocate for the man presumed innocent.

He is dead on target with his observations about "mob rule," however. We glorify victims and permit them to pollute public prosecutions with private rage and grief. Why? Because it feels good, I suppose. It's good entertainment. Ask Oprah.

I have been involved in only a handful of capital cases, so I lack Professor Dow's experience and his track record. But complaining about the injustice of the criminal process is a little too, well, prissy, for my tastes. Nothing is perfect. Dow's declaration that first this lawyer and then that was incompetent in one caseor another smells a little of the wick. What is it that is said of those who cannot do, i.e., manage a law practice and advocate for clients? They teach.

The best argument against capital punishment is, in my view, its finality and the fact that errors cannot be corrected.  But let's face it, there is nothing new under the Sun, or is that now under the needle?, when it comes to the debate about capital punishment.

Read Dow's book. It won't change your mind. But it is concise and generally readable. It will serve as an arrow in your quiver some dark night when all seems lost and you know not where to turn before facing yet another jury ...


The Cube and the Cathedral

About once a year, I order a couple dozen books on current affairs, and then I plow through them, hoping against hope to find some thread to help me through the chaos.

One of this year's turned out to be an unexpected gem: "The Cube and the Cathedral" by George Weigel.

I picked it up last night, and read it one sitting. (It is short -- 180 pages.)

Weigel tells me I am dead wrong in my assessment of the world. The Enlightenment project, and celebration of autonomy, the sense that each of us are and should be at liberty to sculpt a sense of self independent of the dead hand of religious dogma are not sources of life, he argues. Rather, these are the signs of spiritual decay. Our past, our Christian past, is our destiny; we ignore it our peril.

It is a well-made and intriguing argument.

The book is still too fresh in my mind to determine whether the impressions it made will last. But I have the sense that it is a work worth sharing.

A new conservative Pope. Powerful fundamentalist currents in our country. Battles over the judiciary and the commitments of judges who occupy it. Weigel helped me understand why some of those toeing these battle lines are so desparate to win the culture wars.

Oddly, I couldn't say he was wrong. Indeed, he forced me to rethink many of my commitments. I'll be looking at more of his works in the weeks and months to come.

The Cube and the Cathedral: Europe, America, and Politics Without God, George Weigel, (Basic Books, NY, 2005) $23.00.