Begging The Question

Friday, January 13, 2006

Update on Coleman: Guilty, Guilty, Guilty
A few days ago, I posted on the news that scientists would run new DNA tests on evidence in the Roger Coleman case, in an attempt to prove once and for all whether Coleman was innocent of the rape-murder he was executed for, as he always claimed.

Well, the tests are in and the result isn't good for Coleman. The odds that someone other than Coleman left the sample are 1 in 19 million, the testers say. Now, as I discussed in the previous post, I don't expect this to really change much in the ongoing debate over capital punishment. But now I expect abolitionists to cling to that "1 in 19 million" language as still-lingering doubt. They'll say that some 20 million North Americans can't be excluded as suspects in the Coleman case, leaving aside the reality that someone would have noticed if 20 million people were in Grundy, Virginia that fateful night.

As disheartening as this is for abolitionists, I sure hope death penalty supporters don't crow too much. If anything, this ought to make them more willing to agree to DNA testing on close cases. After all, if prosecutors are sure enough the defendant did it to ask a jury to sentence him to death, they ought to be sure enough to put their evidence to science's tests as well as the law's.

That's the rub, though. The high profile that all these DNA cases get gives many people the wrong impression. (Insanity cases are another good example where the reality -- the defense is almost never used and almost never successful when it is -- diverges from perception.) Given the advances in DNA technology, any case with DNA evidence is going to include testing. Cases like Coleman's and other recent exonerations other cases where, unlike Coleman's, testing led to exonerations** are just clearing the decks of old cases where the trial predated modern testing. In the present, and future, testing will happen pre-trial.

But very few cases hinge solely on DNA evidence. It's more often used to bolster other evidence that would support a finding of guilt. And that's even among the cases where a sample exists. Plenty of crimes -- even capital crimes -- don't involve DNA issues at all. Think of a convenience store robbery-shooting, for example, as the kind of case where you wouldn't expect a DNA sample unless the killer left his coffee cup at the scene.

And many cases involving DNA don't come down to matching that sample up to one suspect. For example, imagine if Coleman's defense was that he was having a consensual affair with the victim and her husband found out and killed her. (I have no reason to suspect any such thing, of course.) That would explain the DNA sample. But the issue at trial wouldn't be whether Coleman left the sample, but rather whether his explanation for it is plausible. So in that case, Coleman wouldn't be claiming he didn't have sex with the victim, but rather that he didn't commit rape in the course of the murder (the necessary aggravator to make him death-eligible).

So as nice as DNA evidence is, it isn't the be-all, end-all. It won't take the nasty business of trials out of the hands of juries. Coleman (and the abolitionists) may be unlucky that the tests weren't exculpatory. But in one sense they were very lucky that DNA testing could have made a difference in the case. There are a lot of people in prison who claim to be innocent for whom DNA testing wouldn't matter, even if prosecutors would agree to it. The excessive focus on DNA can make us forget them.

**Edited to clarify that I was lumping Coleman's case in with other cases employing DNA testing to resolve nagging doubts about old convictions. Some of these cases have led to exonerations, and some have not. Thanks to Steve Minor for pointing out my imprecision (link now fixed; sorry).

Tuesday, January 10, 2006

One Piece at a Time
Around New Year's, I was talking with someone about cheesecake, and my love for it, and I suggested going to the Cheesecake Factory to get some. I like calling it "the Factory" like it's some sort of 19th Century Industrial Revolution sweatshop...churning out fluffy cheesecakes.

Anyway, calling it "the Factory" reminded me of the classic Johnny Cash tune "One Piece at a Time," about a guy who steals a car from his factory by sneaking out the parts one piece at a time. At the end of the song, there's a pseudo-CB conversation in which Cash says didn't pay for his car, but "You might say I went right up to the factory and picked it up, it's cheaper that way." So that got me thinking, and the result is my parody song about a Johnny Cash-like figure toiling in the Cheesecake Factory. Apologies to Prof. Berman that it's not a Booker parody, but I've got to go where the muse leads me!

One Piece at a Time

Well I was waitin' tables back in '99
When they put me in the kitchen on the 'sembly line,
The first year they had me puttin' cherries on top of the pie.
Every day I'd watch those beauties roll by
And some days I'd hang my head and cry,
'Cause I always wanted to reach down and take a bite.

I devised a plan to be a cheesecake crook
That should be the envy of most any cook;
I'd sneak it out of there underneath my big chef's hat.
Now gettin' caught meant gettin' fired
But I figured I'd have it all by the time I retired,
And I'd have me a cake full of calories and fat.

I'll eat it one piece at a time
And it wouldn't cost me a dime,
You'll know it's me when I come through your town.
I'm going to get Dr. Phil all riled,
I'm going to drive Richard Simmons wild,
'Cause I'm going to eat cheesecake till I weigh 400 pounds.

The first day I got me the crust and a pan
The next day went according to plan,
I got me the butter and the eggs and the creamy cheese.
The little things I fit under my big white hat,
The vanilla extract and things like that,
Although the mixing bowl was a little bit of a squeeze.

Now up to now my plan went all right
Till I tried to bake it up one night,
And I realized I bit off more than I could chew.
Turns out a gross of eggs is a dozen dozen
And the crust wouldn't fit in my kitchen oven,
I'd made a batch of every pie on our menu!

So I finished baking with an open fire
And had more cheesecake than my heart desired,
My refridgerator/freezer was totally jam-packed.
I had vanilla and chocolate and several kinds of fruit,
I ate every bite of my stolen loot,
I ate cheesecake till I had me a heart attack.

They drove me to the doctor on a flatbed truck
I couldn't get through the door 'cause I got stuck,
I could hear everybody laughin' for blocks around.
But at the doctor's office, they didn't laugh,
I brought enough cheesecake for the entire staff,
And now, like me, they've put on a couple pounds.

I ate it one piece at a time
And it didn't cost me a dime,
You'll know it's me when I come through your town.
I'm going to get Dr. Phil all riled,
I'm going to drive Richard Simmons wild,
'Cause I'm going to eat cheesecake till I weigh 400 pounds!

Monday, January 09, 2006

Sinners in the Hands of an Arbitrary God
I've been thinking a bit about this Pat Robertson business. The good reverend, if you haven't heard, got in a bit of hot water last week for suggesting that the stroke that struck Israeli Prime Minister Ariel Sharon was a sign of God's anger over Sharon's policies. Various evangelical Christians have distanced themselves from Robertson. I'm not an evangelical, and I'm not a theologian, so I can't say whether Robertson's statement was correct as a matter of evangelical belief or Biblical interpretation. But I do have some questions.

Don't many Christians think that -- even if God didn't smite Sharon for parcelling up Israel -- that God could do so if he wanted to? Don't many Christians think God intervenes in everyday affairs down to that level of detail? So maybe God isn't consistent -- not everyone who suffers a stroke "deserved" it -- but don't many Christians believe some people really were struck down by God as specific retribution? I'm not even talking about people who believe Jesus made the other team fumble so your team covered the spread and your bookie had to pay off. Lots and lots of Christians believe God specifically intervenes when good things happen -- like coal miners surviving an explosion. Don't many believe God is at work when bad things happen to bad people -- even if not all bad people suffer equally? I gather that most Christians believe in Hell as a default destination for bad people, but couldn't God move someone to the front of the line if he wanted?

So if the problem isn't the concept of God exercising divine judgment over individuals, maybe the disagreement with Robertson is more over whether Sharon deserved God's fickle finger of fate, rather than over whether God can -- and does -- give bad people strokes if he wants to. Is that right? And if you really believe God acts this way, does it bother you that he is so apparently capricious?

Whoa Nellie! Fummmble!
Rice at the snazzy new Southern Appeal had this post up the other day regarding former football player Lynn Swann's announcement that he is seeking the GOP nomination in Pennsylvania's gubernatorial race. Rice suggests that Swann is "the sort of candidate that Republicans must promote in order to grow as a party" because Swann is "black, conservative, and articulate."

A few thoughts. First, I always find it amusing when conservatives embrace identity politics. Also, I'm not convinced that promoting a rich black man will necessarily resonate with, say, inner-city blacks in Philadelphia. I'll leave it to conservatives to decide if Swann is one of them. I thought he was trying to waffle a bit on abortion in the statement quoted here, but at a minimum, I don't see Lynn getting a nickname like "Swanntorum."

But, "articulate"? Isn't this, at best, a backhanded compliment, and at worst an insult? It's one thing to say that Swann articulates his stance on the issues in a thoughtful way, or something. (I haven't listened to much besides Swann's sideline reports as a football commentator, and while I would say he's more "articulate" than Arnold Schwarzenegger, I don't think we'll regard him as one of the great orators of our time.) But the way Rice worded it, it's almost as if he's expressing surprise that a college graduate can string a few sentences together. Why would that be?

I'm not accusing Rice of anything worse than being inarticulate. But you don't have to be on the email list from the PC police to know that many people find it insulting when you compliment a black person for being "articulate." Failing to understand things like that could be symbolic of a larger inability to "grow as a party."

Sunday, January 08, 2006

Happy Birthday, Elvis! TCB

Recent Posts

  • This blog has moved
  • ThunderCats!
  • Under Construction
  • The real question: Why am I reading this?
  • If I had my way, I would tear this whole building ...
  • Good enough for government work
  • The Me Decade (for the right price)
  • Cautiously Optimistic About 2010
  • 50 Book Challenge
  • Read something I wrote somewhere else!

  • Milbarge's links

    How Appealing
    Volokh Conspiracy
    Crescat Sententia
    Sugar, Mr. Poon?
    E. McPan
    Southern Appeal
    Stay of Execution
    S.W. Va. Law Blog
    Sentencing L&P
    Begging to Differ
    Prettier Than Napoleon
    Favorable Dicta
    The Yin Blog
    De Novo
    PG: HtSoM
    Hot Librarian
    Blonde Justice
    Concurring Opinions
    Crime & Federalism
    Orin Kerr
    Is That Legal?
    Prof. Bainbridge
    Frolics & Detours
    Right Coast
    Abstract Appeal
    Clearly Erroneous
    Fresh Pepper?
    Side Salad
    The Wishbone
    Jeremy Blachman
    Naked Drinking Coffee
    Legally Blonde
    Legal Underground
    WSJ Law Blog
    The Slog
    Trivial Pusuits
    Still Angry
    Crooked Timber
    The Conglomerate
    Heldman: Ignatz
    Don't Let's Start
    Screaming Bean
    Heidi Bond
    Stag Blog
    Legal Quandary
    Divine Angst
    Things Thrown
    The Imbroglio
    Signifying Nothing
    Stuart Buck
    Legal Fiction
    Under. Robes
    NRO's Corner
    New Republic
    Election Law Blog
    Legal Theory Blog
    Legal Ethics Forum
    Ernie the Attorney
    Intel Dump
    Disability Law
    Bag & Baggage
    Between Lawyers
    Lessig Blog
    Crim Prof Blog
    White Collar Crime
    Tax Prof Blog
    Grits for Breakfast
    All Deliberate Speed
    Adventures of Chester
    College Basketball Blog
    College Football News
    Nomination Nation
    Inter Alia
    The Note
    The Onion
    RJYH: Fanopticon
    Vice Squad
    Indiana Law Blog
    Field of Schemes
    Questionable Content
    Dilbert Blog
    Toothpaste for Dinner
    Pathetic Geek Stories

    AIM: milbargebtq
    Yahoo: btqmilbarge

    Milbarge Recommends

    Chuck Klosterman IV: A Decade of Curious People and Dangerous Ideas
    Chuck Klosterman IV: A Decade of Curious People and Dangerous Ideas

    The Men Who Stare at Goats
    The Men Who Stare at Goats


    Site Feeds

    Subscribe with myFeedster
    Subscribe with Bloglines
    Subscribe with Feed Burner
    Subscribe with Blogstreet

    Web BTQ

    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

    Furthermore, I reserve (and exercise) the right to edit or delete comments without provocation or warning. And just so we're clear, the third-party comments on this blog do not represent my views, nor does the existence of a comments section imply that said comments are endorsed by me.

    Technical Stuff

    Powered by Blogger

    Weblog Commenting by

    Listed on Blogwise
    Blogarama - The Blog Directory
    Creative Commons License
    This work is licensed under a Creative Commons License.

    < A Legally Inclined Weblog >