Comment by danso | Hacker News Reader

Comment by danso | Hacker News Reader

Worth noting that the submitter of this story, user ClintEhrlich, played a main role in freeing the wrongly-convicted man. He posted about it on HN a couple years back, in a highly upvoted and discussed thread (500+ upvotes, 200+ comments): https://news.ycombinator.com/item?id=12010760

Edit: it's an ironic coincidence that this follow-up feature was published on the same day of the news of O.J. Simpson's parole: http://www.latimes.com/nation/la-na-oj-simpson-parole-board-...

Simpson is being paroled for a robbery conviction 9 years ago but of course his most famous run-in with the law was when he was acquitted of double-murder despite a huge amount of forensic evidence linking him to the homicides (he later lost a civil suit, which has a lower standard of evidence).

In the case described by the OP, the jury voted to convict in the total absence of physical, forensic evidence. It's astonishing that this profiler's beliefs were enough to sway the jury beyond a reasonable doubt but even more grotesque is how a clusterfuck of dumb, unverified assumptions led the profiler to his conclusions. He blames the detectives for not doing "Investigation 101", and says he would not have testified if only he had known the detectives were so negligent.

As much blame as the profiler deserves (he basically comes off as reliable as a psychic), seems like a large portion of blame should go to the district attorney, who presumably knew he was so short of evidence that he had to base his case on the profiler's testimony. Can't imagine what was going through the jury's heads; prosecutors often complain how modern juries demand the presence of DNA because of how TV dramas like CSI portray and hype DNA and other evidence as ubiquitous and unimpeachable, but this jury seems to have had the completely opposite mindset.

Thank you for your thoughtful comments, Prof Nguyen.

There is plenty of blame to go around for the cascade of errors that led to Ray Jennings spending 11 years behind bars for a murder he didn't commit. But most of the institutions responsible for the tragedy — from the D.A.'s office to the judiciary — have owned up to their mistakes.

Not so for Mark Safarik. Despite retracting his opinion in court, he is now publicly insinuating that Ray may actually have been guilty, repeating the very falsities that my father and I debunked in order to overturn the false conviction.

Everything that Safarik says in the article — from the supposed evidence of sexual assault, to the fact that Ray should have been able to see the killer — is addressed and refuted in our initial 34-page letter to the Conviction Review Unit. The truth is available for anyone who cares to read it: http://www.ehrlichfirm.com/jennings/Ray-Jennings-Letter-to-C...

I note that, before we even hired a profiling expert, I was able to point out gross errors in Safarik's work merely by contrasting his testimony to the standards listed in the behavioral-profiling "bible" that he contributed to at the FBI. (See Letter, pp. 20-22.) This is supposed to be the profiling equivalent of the DSM, but Safarik blew off the numerous criteria that contravened his thesis.

Safarik's attempt to shift all the blame to the local detectives is unpersuasive. Their failure to interview everyone at the crime scene was obvious from the investigative materials that Safarik was provided by the Sheriff's Department's. Indeed, Safarik was specifically cross-examined about that failure when he took the stand, yet he clung to his opinion, and thereby allowed an innocent man to be convicted of murder.

Only Safarik himself is responsible for basing his analysis on the false premise that Ray was the only person present who could have committed the crime. When he presented his "expert" opinion, Safarik acknowledged the presence of other individuals in the parking lot around the time of the murder, but inexplicably brushed that fact aside because it did not fit his desired conclusion.

If Safarik is the best that the "science" of profiling can offer, it has no place in our courts.

We all owe you thanks for your work on this case.

I can imagine that profiling might have a use in generating leads for investigators to follow, perhaps leading them to actual evidence. But it can't be considered evidence itself.

The moment in the story where I lost all respect for this profiler was the description of how he insisted a "tell" implied lying. There are no known generic reliable tells for lying and anyone claiming there is are basically disqualifying themselves from being an authority on behaviour.

There are reliable tells that imply "pacifying behaviours" for stress, and those can be useful to pay attention to in order to get people to trip up in interrogations, but there are many possible reasons for that kind of stress, including an interrogation itself being a stressor. But people who try to identify lies based on their theories of such tells without intimately knowing that person in advance generally do no better than chance.

(A good book on the subject, which gives a very sober assessment of what body language can actually reliably tell us vs. where you need to thread carefully is Joe Navarro's "What Every Body is Saying" - Navarro is a former FBI agent and trainer)

You know the saying "if you like sausages never go to the sausage factory"? Well I've got some bad news for you about the justice system.

We like to think of courts and juries in the idealistic view given to us in school. Its just like "12 Angry Men". Everyone gets their fair shake in court. Even if 11 people want to convict and go home the 12th one will stand up right? After all, you're a reasonable person. You can't imagine just convicting a guy without a reasonable discussion. Surely enough of your fellow citizens are the same?

The truth is a shocking amount of people in society just have deference to authority figures. They'll trust whatever expert the prosecution produces. You would think that courts have standards for what counts as experts, but the truth is the standards are horribly lacking. Shows like CSI give the average citizen a cops and robbers view of reality. When is the last time an episode of CSI didn't end with the guy getting caught and convicted? Have they ever made a mistake in CSI? Made an ambiguous decision?

And why wouldn't the DA choose to prosecute as much as possible? You don't want to appear weak on crime. After all, you have an election to win if you want to keep your job.

Trial by jury is only as good as the society within which it exists.

12 Angry Men would never play out in my state where you can be convicted for murder by 10 of the 12 jurors voting guilty.

which state is that?

Does it have a beyond a reasonable doubt standard, because if it does this implies a validation of the 28% crazification of the population theory.

I heard that "Perry Mason" was a response to inept prosecutions (the defendant always looks hopelessly guilty, and Mason always proves him innocent).

> When is the last time an episode of CSI didn't end with the guy getting caught and convicted? Have they ever made a mistake in CSI? Made an ambiguous decision?

Actually there was one episode where they knowingly sent down an innocent man in CSI:Miami. A mentally challenged man had been unwittingly framed by his brother for a murder he didn't commit. The piece of evidence that sends him to jail if I recall correctly was a tie used in the crime that the brother asked his mentally challenged brother to retrieve from the back of the truck putting his DNA or fingerprint on it. The team know the kid they're sending down is innocent, but the evidence is the evidence and their hands are tied.

I can't for the life of me find a link to the episode. Perhaps someone with more Google-fu than me could assist.

It seems the jury was basing their faith in the profiler on another famous crime drama, namely Sherlock Holmes.

>The driver’s-side window of the victim’s car had been lowered several inches, suggesting to the profiler that the teen had rolled it down when someone who looked trustworthy approached. And her tube top was askew — a sign, the profiler said, of a botched sexual assault.

In Sherlock Holmes stories, that is a fairly reasonable inference. Here, for example, is an exert from the story "The Hound of the Baskervilles":

>The address, you observe is printed in rough characters. But the Times is a paper which is seldom found in any hands but those of the highly educated. We may take it, therefore, that the letter was composed by an educated man who wished to pose as an uneducated one, and his effort to conceal his own writing suggests that that writing might be known, or come to be known, by you.

The issue is in real life, this sort of inference is absolutely absurd. There are a dozen other possible explanations that fit the evidence, and to make such wild speculations gets you nowhere except chasing dead ends and accusing innocent men. It works in Holmes' stories because, and this is very important, they are fictitious. Doyle can have Sherlock spout any kind of insane gibberish, and still have him be right in the end.

Though I can't fault lay persons for not understanding why this technique is faulty, both because pop culture treats it as valid and because it's a classic instance of sampling bias: Say 100 profilers failed spectacularly, and 10 succeed and produce perfect profiles. The 100 failures aren't interesting or worth talking about, some stranger not being correct one time is not a good story. The 10 successes get talked about endlessly at conferences, at the local bar, when people give advice to each other. Old veteran cops 20 years later still talk about that one time a profiler solved a cold case in a snap. So, over years, a mythology is built up and the objective abysmal quality of profiling is hidden by the fact everyone everywhere has heard of the 10 successes while the 100 failures are lost to the dustbin of history. Rather, appropriately, like Doyle's own real life attempts to play detective - the dozens of times he was humiliated are (mostly) forgotten, while the handful of successes are the stuff of (nerdy) legend.

Samuel Vimes dreamed about Clues. He had a jaundiced view of Clues. He instinctively distrusted them. They got in the way. And he distrusted the kind of person who’d take one look at another man and say in a lordly voice to his companion, “Ah, my dear sir, I can tell you nothing except that he is a left-handed stonemason who has spent some years in the merchant navy and has recently fallen on hard times,” and then unroll a lot of supercilious commentary about calluses and stance and the state of a man’s boots, when exactly the same comments could apply to a man who was wearing his old clothes because he’d been doing a spot of home bricklaying for a new barbecue pit, and had been tattooed once when he was drunk and seventeen* and in fact got seasick on a wet pavement. What arrogance! What an insult to the rich and chaotic variety of the human experience!

-- Terry Pratchett, Feet of Clay

Well said! I grew up reading Sherlock Holmes, and enjoyed it, but I recently revisited some stories and was enraged by how much general BS there as in all the inferences. Just a bunch of ridiculous (often not even true) stereotypes slapped together and an infallible hero spouting them.

The books would have caused a thousands kinds of outrage had they been written today.

My favourite Sherlockian inference was determining that a woman was a typist because 'she had spatulate fingers'...

For jury, imagine a bunch of people who fall for every rhetorical and statistical fallacy in the book, love a good story and are led by emotions and prejudices rather than facts and reasoning.

My feeling has always been that we should reengineer our jury system. Jurists should be professionals, not a random nobody pulled from the community. They should be independent, private employees with a code of ethics and training in skepticism and the sciences of statistics and evidence. Also, they could specialize in fields relevant to certain cases. In our current system, we look for the most ignorant juries so that the lawyers can fill their heads with whatever knowledge they please, unencumbered by facts.

In the new system, professional jurists would be paid for by the courts, but not directly employed by them or the government. The prosecution and defense could have their pick that they must agree on just like now, but they would be basing their pick on the professional reputation of the jurist, not exploitable characteristics or ignorance.

I have heard that the intent of the term "trial by peers" was that the jury should be full of people with understanding and similarly experienced to the accused, so they would be well-versed in the specific nuance and details around the accusations. Like if a banker was on trial for financial crimes, the jury should be randomly selected bankers.

Jury selection today specifically selects against "peers" of the accused. (and as you also mentioned, against "peers" of anything in general :-P )

Peers in context are your fellow citizens nothing more.

Peers is a word that could be unpacked to mean more than just fellow citizens though, and to prove that it originally meant only fellow citizens runs into all the problems inherent in authorial intent multiplied by the number of people who worked on the constitution. Hence the need for supreme court interpretation.

Peers in context have been interpreted to mean your fellow citizens, nothing more.

Although I'd like to note that letting a jury of bankers sit on a financial crime might mean no banker ever got convicted. So the whole more exacting definition of peers argument has some definite problems.

> Peers is a word that could be unpacked to mean more than just fellow citizens though, and to prove that it originally meant only fellow citizens runs into all the problems inherent in authorial intent multiplied by the number of people who worked on the constitution.

No, it absolutely does not, because neither the phrase nor any alternative phrase on the subject incorporating a reference to “peers” appears in the Constitution, which instead provides (in the Sixth Amendment) for an “impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”. (It is a common rephrasing of a guarantee—“the lawful judgment of his peers”—in Magna Carta which unmistakably was an product of the barons’ insistence that members of their formal social station should render verdicts against them.)

> I have heard that the intent of the term "trial by peers" was that the jury should be full of people with understanding and similarly experienced to the accused

You have heard wrong. The term is a rephrasing of a guarantee in Magna Carta [0], and refers to the right to be judged by others of the same formal social station.

[0] in one English translation, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

>Jurists should be professionals, not a random nobody pulled from the community. [...] In the new system, professional jurists would be paid for by the courts, but not directly employed by them or the government.

Jurist are as impartial as you can get. Making someone a paid professional jurist doesn't magically strip them of all their biases. Courts are intimately familiar with this, precisely when they ask jurists "Do you think Police are less likely to lie under oath than a normal person" in voir dire because judges know that police are just as corruptible as the rest of us.

Your proposal is basically creating a system by which a lawyer cannot ensure that your are judged by a jury of your peers. The problems with the judicial system are people based /not/ jury based.

Jury duty is the one chance that citizens can make a direct action in the power of the state and you are proposing changing that and some how having the government to pay that person but also simultaneously not being paid by the government.

What I am proposing would certainly require a Constitutional amendment (in the US, at least). It is a departure from the "jury of your peers", which is the intention. The specificity of modern scientific evidence warrants rethinking the way we select juries. A jury of normal citizens is just not equipped, educationally, for the job. Specialists are required with intimate subject knowledge.

I am proposing that the expense of the jury be covered by the court (as it is now for citizen juries, and it is also is with public defenders), but that they not be employees of the court. Again, like public defenders.

It certainly wouldn't be a perfect system, but I believe it plugs some of the holes that have appeared in our current system of jury selection.

The court should not permit speculative testimony of this nature to be counted as evidence in the same way that lie detector tests are inadmissible or hearsay.

This is a better argument for the importance of public education than it is for creating a new profession.

It's shocking how much "evidence-ish" stuff is permitted, and how evidence is processed by labs integrated with law enforcement and prosecuting bodies. In an era of big data, it's easy to see how "profiling" will turn out to be about as good as a divining rod.

I think this is even more scary:

https://blog.simplejustice.us/2017/05/08/short-take-magic-co...

tl;dr: cop goes for a 160h course, gets a Drug Recognition Expert certificate, then his opinion "based on his training" is enough to establish probable cause and make an arrest and then you sit in jail for however long it takes for tests to get back (if that even helps because "tests come back wrong all the time")

The juries may have been watching a lot of "Lie To Me" type of series.

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