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Airplanes And Alphabet Soup

Is that a fly in your soup?

We all have some modest expectations when taking a plane ride. Personally, I expect that the plane will stay in the air as long as it is supposed to. I would expect a pilot that actually knows how to competently fly the plane. And most importantly, I expect to walk away from the landing. These things do not seem too much to ask when you put your life in someone else’s hands.

Fair Expectations For Other’s Choices

Stepping on a plane is choice. It is a choice which puts our fait in others hands. However, there are times when our fait is put in the hands of others, and we don’t get to choose whose hands. The person wrongfully accused of driving with an alcohol concentration above a legal limit is in such a position. After they consent to a blood test, thinking it will exonerate them; the government makes all the choices that follow. The accused gets no say in the “who” or “how” the test is performed.

In such cases, the blood test result may be the difference between being a criminal for the rest of your life – or – walking out of the courtroom. Thus, it’s fair that we have some reasonable expectations of our government when testing blood.

To Err Is Human, To Ignore Is A Choice

Errors happen.

Errors in labs happen.

Machines occasionally malfunction.

Sometimes errors are caused by machines.  Sometimes people make the “mistaaakes”. As the saying goes, to err is human. However, not all errors are the same. Spelling “mistake” incorrectly is not the same switching John’s blood test result with Bob’s result. A small grammatical error is not the same contamination in a blood sample. The latter are critical errors.   When critical errors occur, without understanding what is causing them, relying upon the results produced is a choice. A choice prohibited by science. A choice we should never accept. It does not seem too much to ask of our government not to make such choices.

Is That A Fly In Your Soup?

You order a bowl of alphabet soup. In the kitchen, the waiter sees a large black fly drowning in it. Fearing for the fly’s life, he reaches with his fingers between a few consonants and scoops up the fly. He has saved the fly from death by soup.

Subsequently, and without telling you, then he takes the same bowl of soup, places it on the table in front of you. With a smile he then says “enjoy your soup.” If you knew about the fly, would you eat the soup? Did simply removing the visible problem in the soup make the soup more edible to you pallet? It does not seem too much to ask of the waiter not to make the choice of serving you a bowl of soup contaminated by an insect

Whether it’s airplanes, alphabet soup, or a blood test result we have a right to some minimum expectations. The more important the thing you are relying upon, the higher our expectations.   When evidence will be used to determine guilt or innocence, we should have the highest of expectations that thing were done correctly. Is that too much to ask?

By Lawkop on December 2, 2015 | Forensic Science | A comment?

The myth of milk

We have an unhealthy relationship with milk – both biologically and metaphorically. While the biological debate is well documented, its metaphorical issues deserve more consideration.

If left to nature the fat in milk will separate. The less dense portions of the fat rise to the top. This is what we call cream. People often consider this the “best” part of milk. The lesson people often draw from this process is the “best” will always end up on top. Expanding the aphorism, “the best will eventually win,” because they are the best.

Of course this lesson is painfully incorrect. It is based upon the premises that human decisions are rational and results are fair. These beliefs are disconnected from reality. Not to say all decisions are completely devoid of these, but they alone are insufficient to bring the “best” to the top.

Is it your experience that the most qualified person always wins? I bet you have seen countless examples where the “best” person for the job doesn’t actually get the job. Have you ever done the “best” work, and not been picked?

In our country, does the “best” person to be President always sit in the White House? According to about half the country the answer may be “yes,” but the other half “no”. Many people may feel it is not even a choice of the two “best“. Rather, it was choice of lesser evils. The cream certainly does not always raise to the top in politics.

People, and the things we pick, rise above others for reasons well beyond their merit. The “best” selling products are not always bought because their superior quality. It is the product with the best story that wins. It is the politician with the narrative that connects with the most voters that is picked. It is attorney that is able to craft the best authentic story that gives her client the best chance.

One needs only to look to milk itself to see past it’s false metaphor. If the milk gods truly believed their own aphorism, there would be no need for celebrities with milk mustaches and a tagline. If the cream always raises to the top, people would already gotten it before the television commercials and billboards.

By Lawkop on September 8, 2015 | Legal Storytelling | A comment?
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Making things pretty

You make things the way you want them to be.  I mean…you try to.

Hemingway ends one of his most famous novels with the line: “isn’t it pretty to think so.”  His story shows us how we all color our what ifs with our wants, needs and fears. Hemingway’s art metaphorically reflects our need to believe our world views – regardless of their truth.  

While we do not always make our world “pretty,” we do make it customized:

  • There are some people that saw the evidence and still believe “OJ didn’t do it.
  • Lots of fans think their favorite baseball team will win a pennant in the springtime, despite a mountain of evidence to the contrary.
  • When it comes to politics, people often vote against their own interests because of a moral vision of the world they desire.

Understanding why someone customizes their reality, the way they do, is key to revealing: (1) if your audience is likely to believe your story; and (2) the best way to tell it. In the courtroom we call this storytelling process a jury trial. The people you are telling the story to we call jurors, the judge, and lawyers. Everyone of them customizes their reality.  It is unavoidable human nature.  Emotionally unencumbered rationality is a false premise.

Your challenge is to tell the jury a true story using the currency of their collective world views.  People will simply not buy your message if it does not fit their subjective reality. However, it might be “pretty” to think so.

By Lawkop on July 17, 2015 | Legal Intelligence, Legal Storytelling | A comment?

Stop

  • Don’t read another case;
  • Don’t write another sentence;
  • Don’t see anymore clients

…until you answer one question. Why are you here?
Take your answer and compare it what you are doing. Do the two fit? If the answer is no, then quit as fast as you can

By Lawkop on July 4, 2015 | About Legal Coffee | A comment?
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Beware of False Scales

It’s an old warning, but it still holds true – beware of false scales. Throughout history the admonition against using a numerical value to mislead others has taken many forms:

  • Proverbs 11:1 tells us “[t]he Lord detests the use of dishonest scales, but he delights in accurate weights”;
  • Leviticus 19:35 cautions “‘[d]o not use dishonest standards when measuring length, weight or quantity.”
  • Mark Twain is quoted as saying “[t]here are three kinds of lies: lies, damned lies and statistics.”

Each of these aphorisms recognizes the power of numbers to mislead or bolster a weak argument.  

However, despite history’s warning, many people appear wired to automatically believe numbers in print. A printed number has a sticky quality that is difficult to detach. This is why politicians use them so often regardless of their truth.  

Providing a number without the facts that belie it distorts its meaning by providing an incomplete picture. Showing only the parts of picture you want people to see is a powerful persuasion technique…as the most deceptive things in life are almost true. That is what makes them so believable.  

Test results in DUI cases are no exception. Anecdotally speaking, the majority of DUI cases are not the person who is a sleep in a running car, that is stopped in the middle of an intersection at a green light, clutching an open bottle of vodka. Impaired driving cases are usually less obvious. Most convictions are dependent upon the results of a chemical test.

Our best evidence for determining impairment (by alcohol) is a reliable measurement of a person’s alcohol concentration. DUI is one of the few crimes in our country where a printed number is the primary difference between innocence and guilt. As such, there is no situation where it is more important to heed history’s warning about false scales.

When a blood tester prints out a number it is the end result of its software’s counting and processing the data it has been provided. There is no artificial intelligence within the machine guaranteeing the trustworthiness of the result. Moreover, the printed number is not meant to represent the true value of a person’s alcohol concentration. It is merely a best estimation. However, when it is portrayed as a the right answer, the problem is not with the machine. The problem is with the human who knows it is misleading to provide a number without an explanation of its limitations.  

Reporting just a number printed by a machine is form of deception which incorporates “a truth”. It is true that the machine printed that number. However, if that number:

could have a range of uncertainty below a statutory limit;

is created by a machine that has been assigning the wrong number to the wrong person; or

has been produced by using a unreliable calibration method

…it cannot be trusted. Without knowing these facts, the number falsely implies certainty.

The results of any measurement are only truly understood in the totality of its context – supported by the underlying data. Dishonest scales are not only to be detested by a higher power…we the people should detest them as well. As the American economist Edwards Deming famously declared “In God we trust; all others bring data.”

The difference between standing and sitting

The dictionary defines “Grit” as “courage and resolve; strength of character”. However, these words are inadequate.

Grit is the difference between standing up after being knocked down or staying put. It is something inside you that says “yes” when the person you’re standing nose-to-nose with unfairly says “no”. Grit drives you towards what you believe at your core

Grit is identified by action – not appearance. It does not manifest itself in fashion or stature. A small homeless child who wakes up not knowing where her next meal will come from likely has more grit than a 300 pound defensive tackle with black war paint below his eyes.

People with grit focus on the task not the time it takes. It makes perfect sense to people with grit why the tortoise beat the hare.

Grit does not show up on a standardized test score. However, it can reveal itself in the wake of a poor result. How you respond to a test result that tells you “no”, is a measure of your grit.  

Do you let it stand in your way?

Will you move around it?  

Do you choose to go through it again…and again?  

If you have grit, failure is merely the unhappy kindling that ignites it. As Einstein told us, “[i]t’s not that I’m so smart, it’s just that I stay with problems longer.”

Grit makes irrational choices. The best irrational choices. It moves you towards choices that people around say are foolish or a waste of time. When your collegues believe there is an unstoppable force in your path, grit is why you stand as the immovable object.  

Grit is a passion that lays in your gut silently waiting for the call.  Grit fights a continuing battle with the resistance deep inside you. It is where you find your strength when other can’t. Luke had the force. You have grit.

All other things being about equal, what quality do you want in your counsel? When you are wrongfully told to sit down, I want someone who stands up.  

Default is a choice

Justice is a system.  It is a constellation of related principles and structures forming a complex network.  It is supposed to result in a product which furthers our ideals.  The courtroom is the factory floor of the system. It is an amazing place.  Every morning you can experience the best of us…and the worst.

Like any other system that deals with volume, the courtroom constantly pits efficiency against quality. Keeping these goals at a reasonable equilibrium over time is difficult.  It is a mistake to pretend that there is some easy solution to consistently balancing them just sitting on a shelf waiting to be utilized. However, dispite the difficulty of achieving this balance, justice requires we take on this task.  Justice is premised on its own difficulty to achieve. Thus, we must strive to produce the best justice we can. This struggle gets built into the policies, procedures and culture you encounter on the other side of the bar.

When one of these goals is significantly out of balance with the other, there are costs and consequences. An unintended and discrete symptom of efficiency trumping quality is when the system’s caretakers stop thinking. Volume creates reflexiveness. Experiencing what appears to be the same issue over and over easily leads to callousness. The increasing size of a court calendar increases the temptation to treat every case (and every person) the same. In turn, we create a “one size fits all” default process.

  • “All cases must be resolved in 120 days.”
  • “We have rules, all we need to know is if broken?”
  • “Everyone will go to jail for xx months if they…”

However, not all cases fit in “the 120 day box.”  As matter of experience, to properly handle most criminal cases, under the prevailing legal climate, 120 days is usually inadequate.  I would argue that most first time non-violent offenders are significantly harmed rather than helped by extended incarcerations. Most people outside our system are unaware that there is a cost to sending a person to jail. In Arizona it is around $200 day. Similarly, most people are unaware that the taxpayer (i.e. you) will end up paying the government in many of these cases. People who are not on the factory floor just don’t know costs of these decsions to: them. In turn, they are unaware of the consequences of efficiency significantly outweighing our other goals.

The above defaults are just easier. They do not require us to think. They do not require us to take on the emotional labor necessary to do our job – the best justice we can reasonably do.

These default responses also help us believe we are not accountable for the results of our default actions. Even on its best days the Justice System will not always get it right. Some days are better (or worse) than others. There is always the fear that someone’s decision results is news story criticizing their decision.  While this is a legitimate fear, it is not acceptable guidepost. These are the pros. Being guided and driven by fear is for amateurs.

Relying upon your default system is a choice.  Ask yourself: is it your choice?

Voting in the dark

Transparency enables us to know what we are voting for.  However: 
  • “One person one vote” — not true…if you don’t know what your voting for;
  • “You vote your conscience” — not true…if you don’t know what your voting for;
  • “You verdict is justice” — not true…if you don’t know what your voting for.
We have important decisions to make.  All we ask is you give us the truth to make these decisions.  
 
If people are guilty, then we will vote guilty.  If people are not, then we will let them go.  Either way, we just need the facts.  So why are we fighting about getting the truth?  Whether its video from a body camera, emails, or evidence of malfunctioning equipment in a crime lab, we just want the facts.
 

“Publicity is justly commended as a remedy for social and industrial diseases.  Sunlight is said to be the best of disinfectants;  electric light the most efficient policeman.”

JUSTICE LOUIS BRANDEIS

 
Why do some people want us to vote in the dark?  
 
More importantly, why do we ever accept voting in the dark?

The Scottsdale Crime Lab, Isaac Asimov & The Arizona Supreme Court

The most exciting phrase to hear in science, the one that heralds new discoveries, is not “Eureka” but “That’s funny…” ~Isaac Asimov (1920–1992)

Over 3 years ago, myself and few other attorneys stumbled upon something that we could not explain. It was a printout of from a machine called a gas chromatograph. Gas chromatograph’s are commonly used in DUI cases to measure the amount of alcohol in a blood sample. The machine processes a microscopic amount of blood using a combination of firmware and software. The end result is a graphical representation of the data called – a chromatogram. The chromatogram that we found from the Scottsdale crime lab was unlike anything we had ever seen before.

If you want to find out how that chromatogram resulted in an Oral Argument before the Arizona Supreme Court next week, the click here.

Democracy requires…

…challenging things you do not want to believe are true. We want to believe that our government will do the right thing all the time. History shows however, even our great Republic, this not the case. Such desires make us feel secure. These desires color our unconscious thinking. They position our viewpoints. It is just easier to live in a world in sync with the things that make you feel safe.

On some level, we all need to see parts of the world, as we need them to be. Our basic human coping mechanisms often result in overlooking, or discounting, information. It can be as simple as wanting to believe your weight is not a problem, so you don’t need to step on to the scale. It may be voting for a bill, your have not read, merely because your political party sponsors it. Consequently, there is the democracy we live in, and the democracy we believe we live in.

The good news – lots of people in government are well intended. There are countless public servants who do good everyday. There are firefighters, policeman and even politicians trying to make a change for the better all the time. Parts of our Republic really are the democracy you want.

The bad news – the above seem to be a shrinking tribe. There are just too many examples people in government not acting on behalf of the people they represent. The sum total of their public service are acts of self preservation and fulfillment of personal agendas.

More good news – we all have the power to deal with these the bad actors. Such people were expected when this Republic was created. The Constitution starts “We The People” affirming that government exists to serve the people. It goes on to state in order to “build a more perfect union” acknowledging the Republic will never be perfect. “More perfect” is our aspiration, not our the anticipation. The Bill of Rights gives every citizen the tools to participate in shaping what tomorrow’s “more perfect” will look like. Our Democracy guarantees you a seat at table.

Your seat is there waiting for you. You just have to choose to sit down.